ALL PROGRESSIVE CONGRESS v. IBRAHIM UMAH & ORS (2018)

ALL PROGRESSIVE CONGRESS v. IBRAHIM UMAH & ORS

(2018)LCN/12278(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 12th day of December, 2018

CA/PH/461/2018

RATIO

APPEAL: FAILURE TO FILE LEAVE OF COURT

See ATTORNEY-GENERAL LAGOS Vs. OSUAKA (2010) 4 NWLR (Pt. 1183) 68 at 77 and IGBINEDION Vs. ANTIA (2018) 15 NWLR (PT. 1642) 262 at 278C. That being the case, the failure to seek for and obtain leave of the trial High Court or this Court before the appeal was filed, is fatal. We have no jurisdiction to entertain the appeal and it is therefore hereby struck out.” PER ABUBAKAR DATTI YAHAYA, J.C.A.

EVIDENCE: WHERE A PARTY FAILS TO FILE COUNTER-AFFIDAVIT

“It is trite, that when a party fails to file a counter-affidavit in opposition, it will be deemed to have accepted the depositions in the affidavit of the party. The trial judge was therefore supported by the state of the ‘pleadings’ of the parties.” PER ABUBAKAR DATTI YAHAYA, J.C.A.

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

ALL PROGRESSIVE CONGRESS Appellant(s)

AND

IBRAHIM UMAH AND 22 ORS Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of the High Court of Rivers State delivered on the 10th of October, 2018 in Suit No. BHC/78/2018 between Ibrahim Umah & Ors Vs. All Progressive Congress. It contains 21 grounds of appeal. The respondents to the appellant have filed a Motion on the 26th of November, 2018 to strike out the Notice of appeal for being incompetent in that the judgment being a consent judgment, leave ought to be sought for and obtained before the appeal can be filed. Since no leave was granted, the appeal is incompetent. The application is supported by an affidavit and two exhibits. Learned counsel for the appellants Mr. Luke moved the Motion and prayed this Court to strike out the appeal.

In his oral argument before us on points of law, since no counter-affidavit was filed, Mr. Ebete for the appellant/respondent contended that as the appeal is pursuant to Section 242, of the 1999 Constitution as amended on grounds of law, leave is not required. He referred us to the grounds of appeal. Learned counsel also submitted that there is no record of terms of settlement being filed and signed by the parties and since this is the only way the parties can evince an intention of settling out of Court amicably, the judgment was not a consent judgment and so no leave is required.

Counsel also pointed out that a boiling issue was that of legal representation which was only determined by the trial Court at a later stage, but that the parties wanted to be heard but were not. He informed us that the Court of Appeal had settled the question of legal representation in its judgment delivered in June 2018.

In a reply, Mr. Luke for the applicants submitted that the grounds of appeal are not on law alone but mixed law and facts and therefore require leave – Section 241 (c) of the 1999 Constitution. He referred to EGEMOLE Vs. OGUEKWE (2008) 12 NWLR (Pt. 1101) 544 C – D. He also referred to page 7 paragraphs a, b, c and (d) of the judgment of the High Court showing Court judgment and that the appellants were represented by counsel, were heard and were given fair hearing.

Counsel also informed the Court that by the decision of the Supreme Court delivered on 22/10/18, in SC/764/18, the decision of the Court of Appeal was set aside on legal representation.

We have had the opportunity of going through the processes filed and have considered them. The crux of the matter in our view, is whether the judgment of the High Court Rivers State was a consent judgment or not, requiring leave to appeal. We have looked at pages 7, 10 and 11 of the judgment of the trial Court. The trial judge found specifically at page 11 of the judgment, that:

“the respondent did not file any counter affidavit to challenge the depositions of the applications in their affidavit in support of the originating summons. In other words, the respondents did not deny the veracity of the applicants’ affidavit evidence.”

It is trite, that when a party fails to file a counter-affidavit in opposition, it will be deemed to have accepted the depositions in the affidavit of the party. The trial judge was therefore supported by the state of the ‘pleadings’ of the parties.

At pages 7 and 10, the trial judge found that counsel for the respondents, who was not debarred from appearing for the respondents, informed the Court that he was not “opposed to the Court granting the reliefs sought by the applicants.” It is understandable why learned counsel for the respondents was not opposed to the grant of the reliefs sought by the applicants. This is because he agreed that illegality was unleashed on the applicants by the respondents, when they excluded them from Ward congresses. The counsel ought to be commended for his role as an officer of Court, who stood on the side of legality, even though it did not favour his clients. He consented to the judgment to be given in favour of the applicants, the judge held – page 11 paragraphs 8 & 9 of the judgment.

From the above, it is difficult to appreciate the position of the learned counsel for the appellant, before us, that the judgment was not a consent judgment. It was. It is of no moment, that terms of settlement were not filed and signed by the parties. The learned counsel for the respondents at the trial Court is an agent of his clients and his action and pronouncement bound his clients. There is nothing before this Court to show that he acted fraudulently. Furthermore, whatever the Court of Appeal decided on issue of legal representation is now mute since the Supreme Court in SC 764/18, in a decision delivered on 22/10/18, has set aside the decision of the Court of Appeal. The position of the trial High Court is therefore the position at the moment, on the vexed issue of legal representation.

Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that –

“Nothing in this section shall confer any right of appeal –

Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”

The decision of the trial Court was made with the consent of the parties and so leave is required before an appeal can be filed. Where leave is required to be obtained but was not, the appeal cannot be competent and the appellate Court will lack the jurisdiction to entertain it.

No order as to costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

E. N. Ebete with him, Prince O. S. F. Azuadah and L. A. Ohajunwa.For Appellant(s)

K. P. Luke with him, S. S. Okin and L. T. Mieyebo.For Respondent(s)