AKAM & ANOR v. PDP & ORS
(2022)LCN/16140(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, June 09, 2022
CA/ABJ/CV/428/2022
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. MOSES N. AKAM (The Elected Ward Chairman Of Peoples Democratic Party (PDP) Of Ezira Ward On Orumba South LGA Of Anambra State Also Suing For Himself And Representing All The Elected Wards And Local Government Areas Executive Members Of All The Wards In And Fourteen (14) Local Government Areas Of Anambra State To Wit: Aguata LGA, Anambra East LGA, Anambra West LGA, Anyamelum LGA, Dunukofia LGA, Ekwusigo LGA, IDemiii South L.GA Ihiala LGA, Nnewi South LGA, Onisha North LGA, Onitsha South LGA, Orumba North LGA, Orumba South And Oyi LGA Of PDP Anambra State Chapter) 2. IKENNA EVANS NKPARU (The Elected Ward Chairman Of Peoples Democratic Party (PDP) Of Ezira Ward On Orumba South LGA Of Anambra State Also Suing For Himself And Representing All The Elected Wards And Local Government Areas Executive Members Of All The Wards In And Fourteen (14) Local Government Areas Of Anambra State To Wit: Aguata LGA, Anambra East LGA, Anambra West LGA, Anyamelum LGA, Dunukofia LGA, Ekwusigo LGA, Idemili South LGA Ihiala LGA, Nnewi South LGA, Onisha North LGA, Onitsha South LGA, Orumba North LGA, Orumba South LGA And Oyi LGA Of PDP Anambra State Chapter) APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY (PDP) 2. DR. IYORCHIA AYU (National Chairman Of Peoples Democratic Party (PDP) Representing The National Working Committee (NWC) And National Executive Committee (NEC) And The Electoral Panel Members Sent By The NWC And NEC To Conduct The Ward Congress And Local Government Congresses Of PDP Anambra State Chapter) 3. HON. UMAR M. BATURE (The National Organizing Secretary Of The PDP) 4. OKOLO HENRY OSITA (For Himself And On Behalf Of The 14 Local Government Executive Committee And National Delegates That Emerged From Congress Conducted By The PDP In Anambra State On The 19/2/2022) 5. OKOYE MICHAEL NWEKE (For Himself And On Behalf Of 326 Ward Executives Committee That Emerged From Congress Conducted By The PDP In Anambra State On 26/2/2022) RESPONDENT(S)
RATIO
THE NATURE, PURPOSE AND IMPORTANCE OF A RESPONDENT’S NOTICE
The nature, purpose and importance of a Respondent’s Notice has been illuminated from a plethora of decisions of the Supreme Court. A few of these decisions will give us a clear understanding of what a Respondent’s Notice is. In the case of Oguma Associated Companies Nigeria Ltd v. International Bank For West Africa (1988) LPELR-2318 (SC), the Supreme Court per Nnaemeka-Agu, JSC, held:
“A cross-appeal is just like any other appeal and is governed by the same rules as any other appeal (i.e Order 8 Rules 2 of the Supreme Court Rules, 1985); but a respondent’s notice is based on a different rule (Order 8 Rule 3 ibid). A cross-appeal is therefore, like any other appeal, commenced by a notice of appeal. Where a respondent wants a reversal of a decision, a part thereof, or any conclusion of fact in the decision, his proper appeal does not strictly depend upon an appeal having been filed; any person who has had a judgment in his favour but seeks to reverse the judgment or part of it or any important finding therein can file a cross-appeal without first waiting to be served with a notice of appeal by the unsuccessful party. In fact, a cross-appellant is subject to the same statutory limitation as to time within which to appeal imposed by Section 31 of the Supreme Court Act, 1960, unless of course, time has been extended. See Order 8 Rule 2 of the Supreme Court Rules 1985. A respondent’s notice, on the other hand, depends upon an appeal being filed by the unsuccessful party first. It depends on a notice of appeal being served on the respondent first; then, unless time is extended, he must file and serve his respondent’s notice within 15 days in the case of an appeal against an interlocutory order or one month in any other case. The procedure of respondent’s notice is resorted to when the respondent, not wanting to appeal against the decision, desires to contend in the appeal that the decision of the Court should be varied or that the decision should be affirmed on grounds other than those relied upon by the Court against whose decision the appellant has appealed. It is limited to points which have arisen in the appeal. See on these; Order 8 Rule 3 of the Supreme Court Rules, 1985. See: Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291, at p. 294-297; Alhaji Sunmonu & Ors., v. Gbadamosi Ashrota (1975) 1 N.M.L.R. 16”. PER ADAH, J.C.A.
THE POSITION OF LAW ON THE OPTION AVAILABLE TO A RESPONDENT WHO DESIRES FOR A REVERSAL OR SETTING ASIDE OF THE DECISION OF A TRIAL COURT
However, it is equally trite, that where the respondent desires for a reversal or setting aside of the decision of the Court below in its entirety, the only viable option left thereto is to cross-appeal. See Oguma Associated Companies (Nig.) Ltd v. IBWA Ltd., (1988) 1 NSCE 395, wherein this Court aptly held: “Where a respondent wants a reversal of a decision, party thereof, or any conclusion of fact in the decision, his proper procedure is by way of cross-appeal”. Per Nnaemeka-Agu, JSC at 413. See also Oba Adeyinka v. BP Nig. Ltd (1972) 1 All NLR 45 at 47-48; Ohiaeri v. Akabeze (1992) 1 NSCC 139 at 151; Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt. 124) 1″.
The Respondent’s Notice is not on all fours with a Notice of Appeal. The two of them are notices and they are always deployed in respect of a review of the judgment of the trial Court on appeal but the two differ in effect and operation, It should be noted that the two of them are processes meant to be deployed in an appellate Court. See the case of Adekeye v. Akin-Olugbade (1987) LPELR-104 (SC), the Supreme Court brought out clearly the distinction between cross-appeal and Respondent’s Notice and held as follows:
“The Court below beautifully dealt with the difference between a cross-appeal and a Respondent’s Notice and reminded Respondent’s counsel eager to file Respondent’s Notice rather than a cross-appeal of the distinction drawn by this Court in its several decisions on the matter especially: – (i) Alhaji Sunmonu & Ors. v. Gbadomosi Ashrote (1975) 1 N.M.L.R. 16 at 23 where this Court clearly held: “We are in no doubt that if the Plaintiff wanted a complete reversal of the decision of the lower Court he should have field his cross-appeal under Order 2 Rule 2(1) and not under Order 2 Rules 13(1) as has been done”. (ii) Also in Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291 at pp. 296 and 297, this Court discussed the main differences between a cross-appeal and a Respondent’s Notice. At p. 297 the Supreme Court observed: – “The Notice (Respondent’s Notice postulates that the approach of the learned trial Judge to the case was correct, but that his conclusion had adversely affected the respondent who hereby contends that by the same reasoning of the learned trial Judge he should have received a greater award.” PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): An appeal was filed against the decision of the Federal Capital Territory High Court, Abuja, delivered on the 13th day of April, 2022 in Suit No: FCT/HC/CV/83/2022. The Notice of Appeal was filed on the 14th day of April, 2022 and it is at pages 1268 to 1273 of Volume 2 of the Record of Appeal.
The reliefs of the appellants as shown on the Notice of Appeal read as follows:
4.1 An Order of this Honourable Court allowing the Appeal.
4.2 An Order setting aside the Decision/Ruling/Order/Direction of the Court below given or delivered on the 13th of April, 2022, directing non-parties to the substantive suit in the person of Okolo Henry Osita and Okoye Michael Nweke to address it on issue of its jurisdiction to entertain or not entertain the substantive suit No: FCT/HC/CV/83/2022 filed by the appellants in Court below when they have not been joined as parties to the said substantive suit.
4.3 An Order of this Honourable Court that the proper interpretation of parties on Record are those parties who have sued as claimants or plaintiffs and sued as defendants in the Originating Summons not Parties applying to be joined as defendants or plaintiffs who have not yet been joined as parties as in the case of Okolo Henry Osita and Okoye Michael Nweke.
4.4 Such further reliefs as this Honourable Court may deem fit and just to make in favour of only the Appellants herein.
It would be recalled that on 20/05/2022, upon the application of Mr. Akunebu, SAN, learned counsel for the appellants, based on a notice of withdrawal of appeal filed on 19/05/2022, the appeal was dismissed under Order 11 Rule 6 of the Rules of this Court, 2021.
Upon the withdrawal and dismissal of the appeal, the 4th and 5th Respondents informed this Court of their Respondents’ Notice filed on 27th April, 2022 and that they will proceed with their appeal.
By Order 11 Rules 5 of the Rules of this Court, it is provided as follows:
“Upon a unilateral withdrawal of an appeal a Respondent Notice under Order 9, may proceed with the prosecution of his appeal in accordance with the provisions of these Rules”.
These Rules of the Court need to be revisited as it must have been a mix-up or a slur in drafting. Under our Rules, a Respondent’s Notice is well itemized and provided for in Order 9 Rules 1 – 6 of the 2021 Rules of this Court.
For clarity, let me reproduce the said Order 9 which read as follows:
ORDER 9 – RESPONDENT’S NOTICE OF CONTENTION
1. A Respondent, who not having appealed the decision of the lower Court, desires to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make in that event, as the case may be.
2. A Respondent who desires to contend on the appeal that the decision of the lower Court should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.
3. Except with the Leave of the Court, a Respondent shall not be entitled on the hearing of the appeal, to contend that the decision of the lower Court should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified, or to support the decision of the lower Court upon any grounds not relied upon by that Court or specified in such a notice.
4. Any notice given by a Respondent under this Order must be served on the appellant and on all parties to the proceedings in the lower Court who are directly affected by the contentions of the Respondent and must be served –
(a) in the case of an appeal against an interlocutory order, within fifteen (15) days after the service of the Notice of Appeal on the Respondent; and
(b) in any other case within thirty (30) days after the service of the Notice of Appeal on the Respondent.
5. A Respondent shall file ten hard/physical copies and an electronic copy of his Respondent’s Notice with the Registry of the Court.
6. A Respondent’s Notice may be amended by or with the leave of the Court at any time.
The nature, purpose and importance of a Respondent’s Notice has been illuminated from a plethora of decisions of the Supreme Court. A few of these decisions will give us a clear understanding of what a Respondent’s Notice is. In the case of Oguma Associated Companies Nigeria Ltd v. International Bank For West Africa (1988) LPELR-2318 (SC), the Supreme Court per Nnaemeka-Agu, JSC, held:
“A cross-appeal is just like any other appeal and is governed by the same rules as any other appeal (i.e Order 8 Rules 2 of the Supreme Court Rules, 1985); but a respondent’s notice is based on a different rule (Order 8 Rule 3 ibid). A cross-appeal is therefore, like any other appeal, commenced by a notice of appeal. Where a respondent wants a reversal of a decision, a part thereof, or any conclusion of fact in the decision, his proper appeal does not strictly depend upon an appeal having been filed; any person who has had a judgment in his favour but seeks to reverse the judgment or part of it or any important finding therein can file a cross-appeal without first waiting to be served with a notice of appeal by the unsuccessful party. In fact, a cross-appellant is subject to the same statutory limitation as to time within which to appeal imposed by Section 31 of the Supreme Court Act, 1960, unless of course, time has been extended. See Order 8 Rule 2 of the Supreme Court Rules 1985. A respondent’s notice, on the other hand, depends upon an appeal being filed by the unsuccessful party first. It depends on a notice of appeal being served on the respondent first; then, unless time is extended, he must file and serve his respondent’s notice within 15 days in the case of an appeal against an interlocutory order or one month in any other case. The procedure of respondent’s notice is resorted to when the respondent, not wanting to appeal against the decision, desires to contend in the appeal that the decision of the Court should be varied or that the decision should be affirmed on grounds other than those relied upon by the Court against whose decision the appellant has appealed. It is limited to points which have arisen in the appeal. See on these; Order 8 Rule 3 of the Supreme Court Rules, 1985. See: Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291, at p. 294-297; Alhaji Sunmonu & Ors., v. Gbadamosi Ashrota (1975) 1 N.M.L.R. 16”.
Furthermore, in the case of Abbas Jibrin v. The State (2021) LPELR-56233 (SC), the Court also emphatically held per Saulawa, JSC, that:
“It is trite, that a respondent who not having appealed from the decision of the Court below desires to contend on the appeal that the decision of the Court be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect. See Order 9, Rule 1 of the Court of Appeal Rules, 2016. However, it is equally trite, that where the respondent desires for a reversal or setting aside of the decision of the Court below in its entirety, the only viable option left thereto is to cross-appeal. See Oguma Associated Companies (Nig.) Ltd v. IBWA Ltd., (1988) 1 NSCE 395, wherein this Court aptly held: “Where a respondent wants a reversal of a decision, party thereof, or any conclusion of fact in the decision, his proper procedure is by way of cross-appeal”. Per Nnaemeka-Agu, JSC at 413. See also Oba Adeyinka v. BP Nig. Ltd (1972) 1 All NLR 45 at 47-48; Ohiaeri v. Akabeze (1992) 1 NSCC 139 at 151; Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt. 124) 1″.
The Respondent’s Notice is not on all fours with a Notice of Appeal. The two of them are notices and they are always deployed in respect of a review of the judgment of the trial Court on appeal but the two differ in effect and operation, It should be noted that the two of them are processes meant to be deployed in an appellate Court. See the case of Adekeye v. Akin-Olugbade (1987) LPELR-104 (SC), the Supreme Court brought out clearly the distinction between cross-appeal and Respondent’s Notice and held as follows:
“The Court below beautifully dealt with the difference between a cross-appeal and a Respondent’s Notice and reminded Respondent’s counsel eager to file Respondent’s Notice rather than a cross-appeal of the distinction drawn by this Court in its several decisions on the matter especially: – (i) Alhaji Sunmonu & Ors. v. Gbadomosi Ashrote (1975) 1 N.M.L.R. 16 at 23 where this Court clearly held: “We are in no doubt that if the Plaintiff wanted a complete reversal of the decision of the lower Court he should have field his cross-appeal under Order 2 Rule 2(1) and not under Order 2 Rules 13(1) as has been done”. (ii) Also in Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291 at pp. 296 and 297, this Court discussed the main differences between a cross-appeal and a Respondent’s Notice. At p. 297 the Supreme Court observed: – “The Notice (Respondent’s Notice postulates that the approach of the learned trial Judge to the case was correct, but that his conclusion had adversely affected the respondent who hereby contends that by the same reasoning of the learned trial Judge he should have received a greater award.”
It follows without doubt that there is a whole and clearly defined difference between a Respondent’s Notice and an appeal or a cross-appeal.
In the instant case, the Respondent’s Preliminary Objection raised the issues which are expressed on the notice as follows:
TAKE NOTICE that the 1st and 2nd Respondents herein named to the Respondents’ Notice filed on 27/04/2022 argued in a Brief of Argument filed on 23-5-2022 intend at the hearing of the said Respondents’ Notice to rely upon the following Preliminary Objection, notice whereof is hereby given to you viz:
1. That the said Order 11 Rule 5 of the Court of Appeal Rules, 2021 is unconstitutional and ought to be struck down in relation to the Constitutional Status of the Respondents’ Notice and the 4th and 5th Respondents who filed the said Respondents’ Notice.
2. That this Honourable Court ought to decline jurisdiction to entertain the said Respondents’ Notice as the said 4th and 5th Respondents do not have the necessary locus standi to activate the jurisdiction of this Honourable Court to entertain the said Respondents’ Notice.
3. That the said Respondents’ Notice is incompetent and unnecessary and a waste of precious judicial time and ought to be struck out.
AND FURTHER TAKE NOTICE
That the grounds upon which the said Preliminary Objection is predicated are as follows:
1. The appeal upon which the Respondents’ Notice was filed was withdrawn and dismissed on the 20th of May, 2022.
2. Order 11 Rules 5 of the Court of Appeal Rules does not envisage a Respondent’s Notice filed by Non-Parties to a suit at the lower Court and on appeal as provided by Section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 as altered (Constitution) which defines who exercises the right of appeal from decisions of the Federal High Court or a High Court in Civil Proceedings as follows:
(i) A party to the Proceeding at the lower Court.
(ii) With leave of the Federal High Court, High Court or the Court Appeal at the instant of any other person having an interest in the matter.
(iii) Order 11 Rule 5 of the Court of Appeal Rules 2021 provides that upon a unilateral withdrawal of an appeal, a Respondent who filed a Respondents’ Notice under Order 9 may proceed with the Prosecution of HIS APPEAL in accordance with the provisions of these Rules (Emphasis Supplied)
(iv) A Respondent’s Notice is not an appeal.
3. There is no appeal pending before this Honourable Court going by the provisions of Section 243(a) of the Constitution which is inconsistent with Section 243(a) of the Constitution.
4. The Court of Appeal Rules, 2021 rank as subsidiary Legislation by Section 18 of the Interpretation Act LFN, 2004 and not at par with the provisions of the Constitution.
5. Any Legislation or law or subsidiary that is inconsistent with the provision of the Constitution, shall to the extent of the inconsistency by void, see Section 1(3) of the Constitution.
From all the authorities, a respondent’s notice is not an appeal. It cannot also be turned into a cross-appeal. It can only come into being where there is an appeal and a respondent who in normal settings ought to defend the judgment apparently given in his favour by the trial Court would want the appellate Court to alter the decision of the trial Court minimally to input another reasoning for the determination of the cause by the trial Court.
Order 11 Rules 5 of the Rules of this Court 2021, as earlier pointed out is a bad law. It must be revisited so that the proper rule can be inputted into that Order 11. I believe the draftsmen of the Rules had anticipated a cross-appeal and not a Respondent’s Notice.
From the foregoing, the Preliminary Objection has a great force and it is meritorious. The Objection is hereby upheld. The Respondent’s Notice in the instant case is incompetent. I therefore, have no hesitation in striking it out. The Respondents’ Notice is accordingly struck out.
Parties to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Stephen Jonah Adah JCA, was made available to me in draft before now. The judgment expressed my view and conclusion, to the effect that Order 11 Rule 5 of the rules of this Court runs against all tenets of the law, notably Order 7, Rules 1-8 thereof.
The objection filed preliminarily to my mind is well founded and accordingly succeeds. The net result is that the “Respondent’s Notice” is hereby struck out. I abide by all orders made on costs.
DANLAMI ZAMA SENCHI, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother STEPHEN JONAH ADAH, JCA just delivered, and it substantially captured the issues I raised during the Conference of the Panel of Justices that heard this appeal.
I therefore agree with the findings and conclusions reached therein that the Preliminary Objection is meritorious. The Respondent’s Notice lacks competence, and I hereby strike it out as well.
Appearances:
…For Appellant(s)
Chief C.N. Nwagbo, Esq. – for 1st & 2nd Respondents
Clement Ezika, Esq., with him, Onyinye Princess James – for 4th & 5th Respondents For Respondent(s)