HON. ZAKAWAWU I. GARUBA & ORS. v. HON. EHI BRIGHT OMOKHODION & ORS.
(2010)LCN/4118(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of December, 2010
CA/B/171/2010
RATIO
GROUND OF APPEAL: WHETHER A GROUND OF APPEAL COMPLAINING OF ERROR OF LAW MUST CLEARLY STATE THE PARTICULARS AND THE NATURE OF THE ERROR
An error of law is a mistake of the law. Thus according to the decision in EJIKEME V. AMAECHI (1998) 3 NWLR (PT.542) 456 a party can competently appeal against the failure of a trial Court to decide on an issue canvassed before it. A ground of appeal complaining of error of law must clearly state the particulars and the nature of the error and without that the ground remains incompetent and worthless. See ANYAOKE v. ADI (1986) 6 SC 75. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DISCRETION OF COURT: WHETHER WHEN A COURT IS ENGAGED IN THE EXERCISE OF DISCRETION IT IS NOT MEANT TO FOLLOW OR BE GUIDED OR LIMITED BY ANY PRECEDENT
It is trite law that each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case. also, when a court is engaged in the exercise of discretion it is not meant to follow or be guided or limited by any precedent, so long as it has power and jurisdiction to exercise that discretion. See ODUSOTE V. ODUSOTE (1971) 1 ALL NLR 219. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DUTY OF COURT: CIRCUMSTANCES WHERE THE COURT WILL ADOPT A ONCE AND FOR ALL APPROACH TO DECIDE BOTH THE PRELIMINARY OBJECTION AND THE ORIGINATING SUMMONS IN A SINGLE DECISION
It is a well defined principle that when a preliminary objection is filed against an originating summons and every issue canvassed in both the originating summons and the preliminary objection can be settled by or from the affidavit evidence for and against the processes, then the Court should proceed to adopt a once and for all approach to decide both the preliminary objection and the summons in a single decision. See NZERIBE v. SENATE PRESIDENT. Because a Court of competent jurisdiction is dominis litis over matters before it, it is at its discretion to proceed with any matter subject to the rules of practice and procedure applicable to that Court. However, where the rules of practice do not prescribe a watertight procedure in the determination of a matter, the Court can exercise its discretion on the way and manner to proceed- For example, depending upon the circumstances, a trial Court may decide to isolate and take a preliminary objection before the substantive case. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
LEAVE OF COURT: WHETHER WHERE AN APPEAL INVOLVES QUESTIONS OF MIXED LAW AND FACTS IT COULD ONLY BE BROUGHT AFTER THE REQUISITE LEAVE HAD BEEN SOUGHT FOR AND OBTAINED
I am more inclined to agree with learned counsel to the 12th-14th Respondent this appeal as presently constituted involved questions of mixed law and facts only so it is an interlocutory appeal upon questions of mixed law and facts and to that extent, it could only be brought after the requisite leave had been sought for and obtained from either the lower court or this Court as circumstances may necessitate, pursuant to S.242 (1) of 1999 Constitution. Without this leave, this appeal remains incompetent and this Court lacks jurisdiction to entertain it. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Between
1. HON. ZAKAWAWU I. GARUBA
2. HON. LEVIS A. AIGBOGUN
3. HON. FRANCIS O. OKIYE
4. HON. PATRICK AISOWIEREN
5. HON. KINGSLEY O. EHIGIAMUSOE
6. HON. BLESSING AGBEBAKU
7. HON. CHRISTOPHER I. ADESOTU
8. HON. SUNDAY EBOSELE EREGHAN
9. HON. EMMA OKODUWA
10. HON. (DR.) ISRAEL MANDI AGUELE
11. HON. SAMUEL SHEGUN SAIKI, JP. Appellant(s)
AND
1. HON. EHI BRIGHT OMOKHODION
2. HON. PETER ALIU
3. HON. PAUL OHONBAMU
4. HON. PHILIP SHAIBU
5. HON. IKPONMWONSA E. OGBEIWI
6. HON. UWAMOSE AMADASUN
7. HON. KABIRU ADJOTO
8. HON. UYIGUE IGBE
9. HON. FOLY JOSEPH OGEDENGBE
10. HON. JUDE ISE-IDEHEN
11. HON. BRIGHT N. OSANYANDE
12. HON. JBRIGHT OSAYIMWEN
13. HON. JOHNSON E. OGHUMAH
14. THE CLERK, EDO STATE HOUSE OF ASSEMBLY Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Edo State High Court, Benin Judicial Division delivered by Acha, J. on 26th April, 2010 in Suit No. B/155/OS/2010. Due to a series of events at the Edo state House of Assembly that led to and affected the leadership positions of some of the Appellants, on or about 22nd February, 2010, the appellants as the Plaintiffs before the lower court filed an originating summons dated 2nd March, 2010 seeking for a determination of certain questions and series of declaratory and injunctive reliefs. They are as follows:-
1) “…A Declaration that not less than two-thirds majority of the 24 members of the Edo State House of Assembly is constitutionally required under Section 92(2)(c) of the Constitution of Federal Republic of Nigeria 1999 for the purpose of the removal of the Speaker and Deputy Speaker that is 16 members.
2) A Declaration that the purported removal of the 1st and 2nd Plaintiffs as Speaker and deputy Speaker by the 1st – 13th Defendants is unconstitutional, null and void, with no resolution of the Edo State House of Assembly and votes of not less than two-thirds majority of the members of the House as mandatorily required under section 92(2Xc) of the Constitution of Federal Republic of Nigeria, 1999
3) A Declaration that the purported Motion used by the 1st – 13th Defendants in purportedly removing the 1st and 2nd Plaintiffs as Speaker and Deputy Speaker respectively is unconstitutional, null and void and in breach of section 92(2)c) of the constitution of the Federal Republic of Nigeria 1999.
4) A Declaration that the right to Fair Hearing of the 1st and 2nd Plaintiffs as guaranteed by section 36 of the constitution of Federal Republic of Nigerian 1999 was breached by the failure of the 1st – 13th Defendants to serve a Notice of impeachment on the 1st and 2nd Plaintiffs before their purported removal
5) A Declaration that the purported appointment of the 1st and 3rd Defendant as the Speaker and Deputy Speaker respectively of the Edo State House of Assembly is null and void and of no effect whatsoever.
6) A Declaration that the purported appointment of the 2nd Defendant as the Speaker Protempore on the 22nd day of February, 2010 is unconstitutional null and void and of no effect whatsoever.
7) An order Nullifying the purported removal of the 1st and 2nd plaintiffs as the speaker and Deputy Speaker of the Edo State House of Assembly by the 1st – 13th Defendants on the 22nd day of February, 2010.
8) An Order Nullifying all purported acts orders and steps taken by the 1st – 13th Defendants from the 22nd day of February, 2010 till the date of judgment.
9) An order that the purported swearing in of the 1st and 3rd Defendants as Speaker and Deputy Speaker of the Edo State House of Assembly by the 14th Defendant is unconstitutional, null and void.
10) An Order that the 1st and 2nd Plaintiffs remain the Speaker and Deputy Speaker of the Edo State House of Assembly, with all rights and privileges.
11) An order of injunction restraining the 1st and 3rd Defendants from parading themselves as Speaker and Deputy speaker respectively of the Edo state House of Assembly.
This originating summons was supported by a 26 paragraph affidavit deposed to by the 1st plaintiff/Appellant and had copious documents as annexures as well as an affidavit of urgency. Upon being served with the summons and its supporting particulars and processes, the Defendants/Respondents entered appearance and responded to it in a similar manner, but as 4 sets of Respondents through 4 different counsel. The 1st – 4th Defendants/Respondents represented by Mr. Adeniyi Akintola SAN, 5th to 7th Respondents by Mr. Nnamonso Ekanem of Counsel, 8th – 11th Defendants/Respondents’ through Mr. Adetunji Oyeyipo SAN and 12th – 14th Defendants/Respondents through Mr. Rickey Tarfa SAN.
After having joined issues with the Plaintiffs/Appellants in their respective counter affidavits, the Defendants/Respondents also filed separate and distinct preliminary objections seeking for the dismissal of the summons. These 4 sets of objections were predicated on various and diverse grounds. Having exchanged all these processes thus far, counsel to the parties appeared before the court on 26th April, 2010. On that occasion, the learned trial judge prepared the court to chart a course and direction for the matter. Against a seeming invitation by the learned trial Judge, learned Counsel to the Plaintiffs/Appellants Mr. Imadegbelo SAN took the stage and addressed the court on the direction for the matter. He argued, submitted and suggested to the lower court that the originating summons be taken together with the various preliminary objections of the Defendants/Respondents. He remained on his own as the respective learned counsel to each set of Respondents took an opposite view- Arguing and associating themselves with one another they submitted and suggested to the lower court that this was not an appropriate circumstance when the originating summons could be taken together with the preliminary objections. They each chose that the preliminary objections be first taken with a possibility of a further hearing on the summons itself.
At the end of this exercise, the learned trial court Judge ruled and said: –
“I have carefully listened to the submission of both senior counsel, and other counsel in this case by way of observation and suggestion. I want to quickly say that most of the observations tend to commence argument on the issues even before the start of hearing. I shall as much as possible restrain from commenting on those issues.
Upon a calm consideration of the observations and the issues raised in the main suit and the preliminary objection, it is my view that greater justice will be done to this case and the parties concerned to hear and determine the preliminary objection fired given the fundamental nature of the issues raised to the main suit. One of the issues raised is that this suit is an abuse of court process. If needed it is and which fact will be determined only after argument, it will be a fruitless exercise going into the main case. What is more I am inclined to agree with Mr. Oyeyipo, learned senior counsel that taking the preliminary objection along with the main suit will amount to over ruling the preliminary objection even before argument I do not intend to do that.
Consequently, it is hereby ordered that the preliminary objection filed by the respective sets of defendants shall and be heard and determined before the substantive suit. However, the tight schedule of court not withstanding in view of the sitting arrangement of court, I shall endeavour to give this case accelerated hearing, with the cooperative of the senior Counsel and other Counsel involved.
Sgd. Hon. Justice J. I. Acha
Judge.
26/4/2010.
COURT:- Argument in the preliminary objection filed with the defendants is adjourned till 9/6/2010
Sgd. Hon. Justice J. I. Acha
Judge
26/4/2010
The Plaintiff/Appellants were dissatisfied with this ruling and appealed to this court vide a notice of appear dated 7th May, 2010. This notice of appeal incorprates 3 grounds of appeal and particulars as follows: –
1) The learned that Judge erred in raw in overlooking settled decisions of the supreme court of Nigeria that where an objection to jurisdiction is raised in an action commenced by originating summons it is prudent for the court to hear the arguments on jurisdiction and merits of the case together.
Particulars
i. The lower court is bound by the procedure outlined and applied by the Supreme Court of Nigeria in;
a) DIAPALONG v. DARTYE (2007) 8 NWLR (part 1036) page 32.
b) INAKOJU v. ADELEKE (2007) 4 NWLR (part 1025) Page 423.
ii. By the doctrine of stare decisis subordinate courts are required to follow the decisions of superior courts even where these decisions are wrong.
iii. The trial court did not distinguish the aforesaid supreme court cases but deliberately ignored or overlooked them.
2) The court erred in raw in refusing to hear the preliminary objections and the substantive case together in an action commenced by originating summons on the ground that taking the preliminary objection along with the main suit would amount to overruling the preliminary objections before argument
Particulars
i. The court is only required to express its view on the preliminary objections first before considering the substantive case.
3) The Court erred in law in failing to hear the preliminary objections and the substantive originating summons together to obviate any delay
Particulars
i. Impeachment or removal from office cases is sui generic and time is of essence.
ii. The tenure of the 1st and 2nd Plaintiffs is limited by time.
Against this background respective parties filed and exchanged briefs of argument. The Appellants’ brief was settled by learned Counsel Mr. I. E. Imadegbelo SAN. It is dated 28th May, 2010- the brief of the 1st – 4th Respondents is dated 17th September, 2010 but filed on 21st September, 2010 and was upon an application deemed to have been properly filed and served on 6th October, 2010. The brief of the 5th to 7th Respondents dated 20th August, 2010 was deemed to have been properly filed and served on 6th October, 2010. The brief of the 8th – 11th Respondent is dated 8th September, 2010 but filed on 13th September, 2010 and deemed to have been properly filed and served on 4th October, 2010.
The brief of the 12th- 14th respondents was settled by learned Counsel Mr. J. O. Odubela. It is dated 16th September, 2010 but filed on 20th September, 2010 and deemed to have been properly filed and served on 4th October, 2010.
Further to all these, learned Counsel to the Appellants’ filed a reply brief to the brief of the 1st – 4th Respondents. It is dated and filed on 6th October, 2010. Also, reply briefs were respectively filed to the briefs of the 8th – 11th Respondents and 12th – 14th Respondents. They are each separately dated 4th October, 2010 but each filed on 5th October, 2010.
At the hearing of this appeal on 18th October, 2010, respective learned Counsel to 3 sets of Respondents drew our attention to separate and distinct preliminary objections they each filed challenging the competence of this appeal. The preliminary objection of the 1st – 4th Respondents is dated 17th September, 2010 but filed on 21st September, 2010. It was brought pursuant to Order 10 rule 1 of the Court of Appeal Rules 2007 and founded on 3 grounds. They are:
1) This Honourable Court is an appellate Court and not a trial Court;
2) The preliminary objections and the substantive originating summons (which the appellants canvassed arguments on in their brief of argument) are still pending before the lower Court having not been fully heard and determined; and
3) The preliminary objections and the substantive originating summons cannot be or constitute the basis of any argument in this appeal, there being no ruling or decision whatsoever in respect of same by the lower Court.
The preliminary objection filed on behalf of the 8th – 11th Respondents is dated 7th September, 2010 but filed on 13th September, 2010 and predicated on 3 grounds too. They are:-
a) The directive of Hon. Justice Acha dated 26th April, 2010 being appealed against is not a decision within the purview of the provisions of Section 241, 242, 243 and 319 of the 1999 Constitution of the Federal Republic of Nigeria;
b) The learned trial judge did not decide anything affecting the rights of the parties or merits of the case; and
c) There is no right of appeal in respect of the direction of the learned trial judge bring appealed against.
The preliminary objection of the 12th to 14th Respondent is dated 16th September, 2010 but filed on 20th September, 2010. It is also predicated on 3 grounds; namely:-
i. There was no decision of the trial court made on the 26th April, 2010 within the meaning of S.241(1) of the Constitution of the Federal Republic of Nigeria that the Appellants can appeal against;
ii. The appeal as presently constituted is incompetent, frivolous and should be dismissed with substantial costs; and
iii. Assuming without conceding that there was a decision made by the learned trial Judge on the 26th April, 2010, such decision being an interlocutory decision requires the leave of either the trial Court or this Court for which none was sought by the Appellants.
After introducing their respective preliminary objections, as identified hereinabove, each learned Counsel also informed the Court that same were argued in the respective briefs of each concerned set of Respondents.
Further to this, each learned Counsel took his turn to explain and highlight some of the key features of the arguments and submissions in support of their preliminary objection as well as referring to some decided cases of this Court and the Supreme Court. Against all the arguments and submissions in support of the preliminary objections, learned Counsel, Mr. Imadegbelo SAN introduced and highlighted what he considered the relevant sections/pages of his respective reply briefs. He too, very ably referred to series of decided cases. While respective learned Counsel to the Respondents urged on the Court to uphold the preliminary objections and dismiss this appeal for being incompetent learned Counsel to the Appellants urged on the court to dismiss the preliminary objections and proceed to decide this appeal on the merits.
Having been through with the preliminary objections’ respective learned Counsel each turned their attention to the main appeal. And also having identified same earlier on respective learned counsel adopted and relied on the arguments ad submissions in their briefs of argument- While learned Counsel to the Appellants urged the Court to allow the appeal and set aside the order of the lower Court and go further to hear and determine the issues in the originating summons, respective learned Counsel to the Respondents each urged the Court to dismiss the appeal for lacking in merit.
In situations like the instant appeal, at the level of this Court the proper approach is for the court to first and foremost consider and determine the grounds and issues arising out of the preliminary objection, and, if circumstances permit, then later take on the issues distilled from the grounds of appeal- After considering all the various grounds of the preliminary objections, there appears to be a common denominator that can be deciphered or understood and that is the competence of this appeal and the jurisdiction of this Court to entertain it. There is no doubt that this is a very crucial issue that requires immediate and prompt attention.
For purposes of exigency and the need to avoid undue prolixity, I have decided to approach all the 3 notices of preliminary objection from a single direction. From all the various grounds of objections it is important to decide whether the lower Court in the course of its proceedings of 26th April, 2010 rendered or took any steps that gave rise to an appeallable decision and to go further to decide if this appeal was properly brought before this Court.
In arguing his preliminary objection, learned Counsel to the 1st – 4th Respondents did not make any submissions on whether an appealable decision was rendered or not in the proceedings of the lower court on 26/4/2010. Learned counsel to the 8th – 11th Respondents alluded to the nature of the decision resulting in this appeal in the first ground of his preliminary objection. This appears to me to be the only issue argued at pages 5 – 11 of the 8th – 11th Respondents brief. In arguing this issue, learned Counsel set the ball rolling by extensively quoting from the ruling of the lower court, as earlier reproduced herein above as well as the provisions of Section 240, 241, 242 and 243 of the 1999 Constitution.
With this as his spring board learned Counsel explained that by virtue of S.318 of the Constitution a decision in relation to a Court means any determination of that court that includes a judgment, decree, order, conviction, sentence, or recommendation. He added further that to amount to a decision within the meaning of S.318, there must be a determination by the Court which will settle a point in favour of a party and against the other. Against this explanation learned Counsel quoted extensively from the judgment of this Court in the case of UNITED AGRO VENTURES LTD V. FCMB LTD (1998) 4 NWLR (PT.547) 546 at 561. Also while highlighting the facts of this case, more particularly what happened at the lower Court on 26/4/2010, learned Counsel submitted that this appeal having been premised on the direction of the learned trial Judge is incompetent because it was not premised on the existence of an appealable decision within the meaning of the 1999 Constitution. He urged this Court to so hold and strike out this appeal.
On his own part learned Counsel to the 12th – 14th Respondents explained the nature of a decision that could give rise to a right of appeal. He offered arguments and submissions on this at pages 10 – 16 of his brief of argument. In doing this learned Counsel relied and quoted the provisions of S.241(1) of the Constitution as well as the definition of what amounts to a decision under S.318- In a further effort learned Counsel more or less argued along the patterns of learned Counsel to the 8th – 11th Respondents. Also, according to learned Counsel a directive by a Court on the procedure to be followed in the hearing of, motions before it does not amount or constitute a decision in fact or in law because there was no determination of the case of the parties. In support of this argument learned counsel referred to the decision of this court in OKEKE V. UZO CHUKWUM & MOTORS (2001) 3 NWLR (PT.700) 338. To further re-inforce his position, learned counsel also referred to UNITED AGRO VENTURES LTD V. FCMB LTD (Supra) as well as ONOKERHORAYE v. IGHINOVIA (2001) 11 NWLR (Pt.724) 341, CHIDOZIE V. OMOSOWAN (1999) 1 NWLR (Pt.586) 328 and ONWUALA V. MOKWU (1999) 1 NWLR (Pt.585) 146, and suggested that the word “decision” must mean the exercise of a judicial determination as the final and definite result of examining a question. In an endeavour to elucidate, learned counsel added that “decision” is a popular and not a technical word and means a concluded opinion which is quite different from a directive. In that regard, according to learned counsel, a party may appeal against a decision but not the directive of a court. In conclusion learned counsel referred to what he said is a settled principle of law that it is not every statement made by a judge in the course of judicial proceedings that is appealable, and urged this court to hold that this appeal is incompetent to the extent of its being a mere directive of the learned trial judge thereby not capable of given rise to an appealable decision. He urged this court to go further to strike out this appeal.
In his response on the nature of the decision of the lower court given rise to this appeal, learned counsel to the Appellants referred to S.318 of the Constitution and emphasized the expression “any determination”. With this as a yardstick learned Counsel then went on to maintain that a ruling given in the course of judicial proceedings is a decision or determination within the purview of S.318. He then referred to the decision of this Court in NPA v. EYAMBA (2005) 12 1 NWLR (PT.939) 409, USMAN v. K.S.H.A. (2007) 11 NWLR (PT.1044) 148, AJIBOYE v. ADEYEMI (1997) 9 NWLR (PT.519) 152. Added to these decision learned Counsel went a step further and relied on the Supreme Court decisions in AWUSE v. ODILI (2008) 18 NWLR (PT.851) 116 and ABDULKARIM v. INCAR NIG. LTD (1992) 7 NWLR (PT.251) 1.
In anchoring his position on this issue learned Counsel X-rayed the decision of this court in DIAPIALONG v. DARTYE (2007) 8 NWLR (PT.1036) 239 which he tied up to the facts and circumstances of this case as well as the re-inforcement that decision received at the Supreme Court. Against this background, learned Counsel submitted that an aggrieved party can file an appeal against the ruling of a Court questioning the procedure ordered by a trial Court. He also emphasized and reiterated the decision of the Supreme Court in AWUSE V. ODILI (supra) that any ruling in a judicial proceeding is appealable. A very remarkable feature in the arguments of learned Counsel is the bold attempt he made to distinguish the case of UNITED AGRO VENTURES LTD (supra) from the facts and circumstances of this appeal. According to learned Counsel, while arguments were taken before the directive of the learned trial Judge in the instant appeal no arguments were advanced by the parties before the directive was made in UNITED AGRO VENTURES LTD- In conclusion learned Counsel underscored the fact that in the circumstance of this appeal, the learned trial Judge considered the submissions of respective learned Counsel upon which he wrote and delivered a ruling. To that extent, he urged this Court to hold that the ruling of the lower court dated 26/4/2010 was a decision within the meaning of S.318 and capable of giving rise to a right of appeal. He further urged this Court to dismiss this ground of objection. His reply to the arguments of learned Counsel to the 12th – 14th Respondents on this issue followed the same and identical patterns.
I have carefully considered all the above arguments of respective learned Counsel as well as the various decided cases of both the Supreme Court and this Court together with the provisions of S.318 of the 1999 constitution- with all these in mind it is easy to say that it is not always easy to determine what would amount to a decision for the purpose of exercising the right of appeal’ It is a question which the Courts have been concerned with for a very long time and in different circumstances. Also, the word “decision” is so recurrent and ubiqutous in the provisions of the constitution against the right of appeal, as to render it worthy of attention.
The word “decision- is so ubiquitous in the provisions of Sections 241 – 246 of the Constitution for purposes of exercising the right of appeal to the extent that its definition under S-318 cannot but be elastic as to accommodate any determination embodied in a judgment, ruling, decree, order, conviction, sentence or recommendation. Of course, depending on the facts and circumstances of a matter any determination must involve some mental action of coming to a decision or resolution of an issue. Because of the need to see that the right of appeal is not unduly or severely restricted and also against the need to see it is not subjected to wanton abuse, the word ‘decision’ must be considered in the light of given circumstances and aimed to achieve the aims or objectives’ of the constitutionally stipulated rights of appeal” In my humble view whenever the decision of a Court amounts to a determination by whatsoever name called it should entitle an aggrieved person to a right of appeal- The aim here is to adopt a liberal approach. In line with this thinking I have read through what transpired at the lower Court on 26/4/2010. To the extent that submissions and arguments were made inter parties and what followed later was titled as “Ruling” I would have no hesitation whatsoever to agree fully with learned Counsel to the Appellants that some form of determination had taken place” I have read the entire portion of the record of appeal at page 269, and as fully reproduced above and I hereby hold that that ruling amounted to a determination embodying a decision within the meaning of S.318 of the Constitution. All the grounds of the preliminary objections challenging the right of appeal predicated on the meaning of the word decision hereby fail for lacking in substance.
The next most relevant question to consider is whether the Appellants properly exercised their right of appeal. In arguing against the competence of this appeal, learned Counsel to the 12th – 14th Respondents characterized the order of the lower Court in its ruling of 26/4/2010 as being a judicial exercise of a discretionary power. According to learned Counsel, it is settled law that the exercise of discretion by a Court must be solely based on facts and circumstances which must also require the marriage of facts and law. To that extent, learned Counsel argued that any exercise of discretion must involve a question of mixed law and fact.
Added to this background, learned Counsel submitted that the ruling of the lower Court delivered on 26/4/2010 was without doubt an interlocutory decision against which there cannot be any competent appeal without the leave of the lower or appellate Court. In the con of this submission learned Counsel offered to say that where any process of Court needed to be filed with the leave of Court, it must be so filed, and where it was not so filed it remains a nullity ab initio. In a related effort learned Counsel focused on the grounds of appeal and maintained that they complain on questions of mixed law and facts and typification of them as being of questions of law simpleciter was erroneous and a total misconception.
To support the foregoing arguments, learned counsel referred to the case of ANOGHALU v. ORAELOSI (1999) 13 NWLR (PT.634) 297 where the supreme court decided that where the decision of a High court was an interlocutory one an appeal against it as of right could only relate to question of law simpliciter but when the appeal is on grounds other than law only, prior leave of either the High court or the court of Appeal must first be sought and obtained to do so. The Court also added further according to learned counsel that failure to obtain such leave, renders the ground of appeal incompetent. While referring to the leave envisaged and contemplated in sections 241-243 of the 1999 constitution, learned counsel characterized it as a condition precedent to the exercise of the right of appeal.
In conclusion learned Counsel maintained that the Appellants ought to have obtained leave of the High Court or this court to entitle them to bring this appeal. He added further that because the appellants have failed to obtain the requisite leave to bring this appeal, the same remains incompetent and ought to be struck out or dismissed. He finally urged this court to accordingly dismiss or strike out this appeal.
In his reply contained in paragraphs 1.05 – 1.06, of the reply brief learned counsel to the appellants pointed out that there was no ground of appeal that complained on the exercise of discretion by the learned trial Judge. According to learned counsel the 3 grounds of appeal only question the application of law to undisputed facts. Learned counsel pointed out further that the lower court failed to consider and be bound by the decisions of the Supreme court in INAKOJU v. ADBLEKE and DAPIAL0NG v. DARIYE contrary to the doctrine of judicial precedent with this in mind learned Counsel maintained that the complaints of the appellants herein squarely rest on the misapplication of law to undisputed facts thereby making the grounds of appeal to be grounds of law alone. He then urged the court to hold that the grounds of appeal remain grounds of law requiring no leave to bring an appeal. He further urged the Court to dismiss the preliminary objection for lacking in merit.
It is a well defined principle that when a preliminary objection is filed against an originating summons and every issue canvassed in both the originating summons and the preliminary objection can be settled by or from the affidavit evidence for and against the processes, then the Court should proceed to adopt a once and for all approach to decide both the preliminary objection and the summons in a single decision. See NZERIBE v. SENATE PRESIDENT. Because a Court of competent jurisdiction is dominis litis over matters before it, it is at its discretion to proceed with any matter subject to the rules of practice and procedure applicable to that Court. However, where the rules of practice do not prescribe a watertight procedure in the determination of a matter, the Court can exercise its discretion on the way and manner to proceed- For example, depending upon the circumstances, a trial Court may decide to isolate and take a preliminary objection before the substantive case.
I have carefully considered the 3 grounds of appeal, as reproduced hereinabove, it is beyond per adventure or any speculations that they complain of errors of law. According to learned Counsel, the errors of law arose from the failure of the learned trial Judge to consider and apply the decisions of the Supreme Court in some decided cases said to have been cited in the course of the proceedings of 26/4/2010.
The record of appeal as compiled and transmitted is deemed to be correct and complete. The proceedings of the lower Court of 26/4/2010 are reflected on pages 268 -270 of the record of appeal. From this record, there is no where during the material period where any cases were referred to or cited. How then did this question of errors of law arise? Learned Counsel to the 12th – 14th Respondents had forcefully argued that in declining to take arguments on the preliminary objections filed by the respective sets of respondents along with the substantive summons, the learned trial Judge was merely exercising a discretion. In the absence of any specific reference to any statutory provision or decided cases making it mandatory for a Court to proceed in a specific direction with respect to any given situation the circumstances of this matter would remain very dicey.
An error of law is a mistake of the law. Thus according to the decision in EJIKEME V. AMAECHI (1998) 3 NWLR (PT.542) 456 a party can competently appeal against the failure of a trial Court to decide on an issue canvassed before it. A ground of appeal complaining of error of law must clearly state the particulars and the nature of the error and without that the ground remains incompetent and worthless. See ANYAOKE v. ADI (1986) 6 SC 75. I have focused on the events up to and leading to the decision of the lower court to take the notices of objection before substantive originating summons and based upon. What was transmitted to this Court at pages 268-270 of the record of appeal, I am inclined to agree with learned counsel to the 12th – 14th Respondents that the lower court was engaged in the exercise of a judicial discretion during its proceedings of 26/04/2010.
It is trite law that each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case. also, when a court is engaged in the exercise of discretion it is not meant to follow or be guided or limited by any precedent, so long as it has power and jurisdiction to exercise that discretion. See ODUSOTE V. ODUSOTE (1971) 1 ALL NLR 219. In deciding whether the proceedings of 26/4/2010 before the lower court could give rise to a decision that could lead to an appeal on grounds predicated on questions of law alone as learned counsel to the Appellants had sought to impress on the Court, a look at the entirety of those proceedings would be necessary and helpful. There is no doubt at all that in the course of the whole proceedings leading up to and including the ruling what was being emphasized was the special nature of the case put across in the originating summons, i.e. it needed to be decided urgently as it affected and was concerned with a time bound office tenure; and was Sui Generis as maintained by learned counsel to the Appellant, respective learned counsel to the Respondents had argued to the contrary. It is quite apparent that in the course of this whole exercise no provisions of the constitution, statutes, rules of court, regulations or decided cases etc were referred to or resorted to by both counsel and/or the court. I am fully satisfied that the decision leading to this appeal could only have been predicated on questions of fact or because of the reference to the subject matter of the case being sui Generis a question of mixed law and fact being involved.
From the foregoing, I am further of the view that because the learned trial judge on the 26/04/2010′ adjourned the matter before him to 9/6/2010, his earlier decision to take preliminary objections before originating summons was an interlocutory decision in the course of the exercise of the power of judicial discretion based on the facts and circumstances of the matter before him.
Against this background, it is a total misconception to characterize the grounds of appeal in this appeal as grounds of law alone. I am more inclined to agree with learned counsel to the 12th-14th Respondent this appeal as presently constituted involved questions of mixed law and facts only so it is an interlocutory appeal upon questions of mixed law and facts and to that extent, it could only be brought after the requisite leave had been sought for and obtained from either the lower court or this Court as circumstances may necessitate, pursuant to S.242 (1) of 1999 Constitution. Without this leave, this appeal remains incompetent and this Court lacks jurisdiction to entertain it. I hereby so hold.
The preliminary objections filed on behalf of the 8th – 11th Respondents on the one hard and that of 12th-14th Respondent are hereby upheld. Because they relate to the issue of competence and jurisdiction and had sufficiently disposed of this appeal, I do not see any need b consider the preliminary objection of the 1st – 4th Respondents or to go further into the merits of main appeal.
This appeal is hereby struck out for having been brought without the leave of Idris Court or the lower Court. I make no for costs.
HON. JUSTICE, AMIRU SANUSI, J.C.A.: I was honoured with a preview of the judgment of my learned brother, Gumel, JCA, just delivered I am in entire agreement with his reasoning and the conclusion reached therein-
However just by way of emphasis, I wish to stress that from the facts that gave rise to this appeal these is no gainsaying that the decision now being appeal against arose from the lower court’s exercise of its judicial discretion based on the facts and circumstances of the matter canvassed by parties before it. That being the case, the decision is an interlocutory appeal hinged on question of mixed law and facts. Any issue that involves issues of mixed law and facts requires leave of the court below or this court. The Court of Appeal Act 2004 requires that an appellant should seek and obtain leave of the High Court (or of this court in an interlocutory matter where the grounds of appeal raises issues of mixed law and facts. See Adetona v. Edet (2004) 16 NWLR (Pt.899) 338.
Thus, since in the instant appeal, there is no evidence that the appellants have earlier sought and obtained leave from this lower court or this court, the appeal becomes ab initio, incompetent. My learned brother’s resolve to strike it out is hereby agreed and endorsed by me. I therefore also strike out the appeal for want of prior leave. I also award no costs.
GEORGE OLADEINDE SHOREMI, J.C.A.: I agree.
Appearances
I. E. Imadegbelo SAN (with him A. Alofoje, U. Egbo, S. A. Onokpachere, Miss F. Shuaibu, S. Abasilim, B. S. Oisomoje, L. I. Okun and K. Idahosa)For Appellant
AND
Adeniyi Akintola SAN (with him Abiodun Amole and Miss I. R. Idehen)
Nnamonso Ekanem (with him Mrs. I. Ekoh and Gabriel Oladejo)
Adetunji Oyeyipo SAN (with him Rotimi Oguneso and Mrs. O. A. Odia)
Rickey Tarfa SAN (with him A. J. Owonikoko, J. O. Odubela, Mrs. V. O. Igbinomwanhia, Ojeikhon)For Respondent
