ANYIAM v. ANYAKORA & ORS (2020)

ANYIAM v. ANYAKORA & ORS

(2020)LCN/14623(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, September 16, 2020

CA/A/101/2020

RATIO

PLEADINGS: APPEAL –CLASSES OF APPEAL –LEAVE AND RIGHTS OF APPEAL.

It is settled that the Constitution of the Federal Republic of Nigeria created two classes of Appeal. One is as of right under Section 241 and the other with leave of Court created by Section 242 which provides thus:
“242. (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court Appeal.” Section 241 of the Constitution gives right of Appeal to some situations as listed therein, it says:
“241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases – (a) final decisions in any Civil or Criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings; (c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person; (e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; (f) decisions made or given by the Federal High Court or a High Court -” (i) where the liberty of a person or the custody of an infant is concerned, (ii) where an injunction or the appointment of a receiver is granted or refused, (iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and (v) in such other cases as may be prescribed by any law in force in Nigeria.”
The ruling Appealed against was certainly not a final decision of the trial Court in the suit. The only way an Appeal in an interlocutory decision without leave is when the ground of Appeal is a ground of law and not mixed law and fact or ground of fact. It should be noted here too that a ground contesting the jurisdiction of the Court does not require leave of Court. We have to view the Notice of Appeal to determine the category the grounds therein fall. The Notice of Appeal filed on the 31st January, 2020 has just two grounds of Appeal. The legal position has been that it is not how the Appellant labels or classifies a ground but the Court has to examine to see if it truly qualifies as such a ground. The Appellant tagged the grounds as errors of law. I have examined the grounds and I find the first ground challenging the jurisdiction of the Court below while the second alleges a breach of fair hearing which is a constitutional requirement and therefore both grounds are questions of law which could be heard without leave of Court, see MOBIL PRODUCING UNLTD V PEPPLE (2019) LPELR-47473(CA) where I said:
“The right of Appeal is determined by two factors – the nature of the appeal and the party exercising the right. Where the appeal falls within Section 241(1) of the Constitution, an appeal lies as of right. Where the appeal does not fall within Section 241(1) of the Constitution, Section 242(1) applies. In other words, leave is required. The right of appeal conferred by Sections 241(1) does not require leave of the Court, see CHUKWU & ORS VS. INEC & ORS. (2014) LPELR-25015 (SC). The right of appeal is constitutionally provided for and therefore it is thus circumscribed. Therefore once the grounds of appeal are grounds of law, there is no need of leave because appeal can lie as of right whether the appeal is from a final judgment or an interlocutory appeal. The nature of grounds of appeal in an interlocutory appeal determines whether leave is required or not. The Appellant submits that the grounds of appeal are grounds of law. The apex Court classified grounds of appeal generously and admitted that there is a thin line of difference between grounds of law and grounds of mixed law and fact, see CHROME AIR SERVICES LTD & ORS. VS. FIDELITY BANK (2017) LPELR-43470(SC) which held thus: “It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Over time, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See: Odunukwe vs. Ofomata (2010) 18 NWLR (pt. 125) 404; Metal Construction (W.A.) Ltd. Vs. Migliore (1990) 1 NWLR (Pt. 126) 299; Ogbechie vs Onochie (1986) 2 NWLR (Pt. 23) 484; Anukam vs. Anukam (2008) 5 NWLR (Pt. 1081) 455. I reproduced the 4 grounds in this appeal and they set out a challenge to jurisdiction and breach of right to fair hearing and I am of the respectful view that they evince issues of law and there are fundamental. Jurisdiction is so important and fundamental that it can be raised orally and even at the appellate Court for the first time, see SALISU & ANOR VS. MOBOLAJI & ORS. (2013) LPELR-22019(SC) wherein the apex Court held: “It is not out of place to stress that the issue of jurisdiction is a threshold one which this Court, in Elugbe vs. Omokhafe (2004) 11-12 SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court, the proceedings would come to naught and remain a nullity if same were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See Petrojessica Enterprises Ltd. vs. Leventis Technical Co. Ltd. (1992) 6 SC (part 11) 1; Katto vs. CBN (1991) 11-12 SC 176; Oloriode vs. Oyebi (1984) 5 SC 1; Ezomo vs. Oyakhire (1985) 2 SC 260 at 282 and Lado & 43 Ors vs. CPC & 53 Ors (2011) 12 SC (part 111) 113.” It is also indubitable that fair hearing is a pillar in the administration of justice which has constitutional backing. Any allegation of its breach would definitely be a ground of law and not mixed law and fact.” It is trite that an Appeal is a continuation of hearing as settled by a plethora of cases, see NWAOGU v. ATUMA (SUPRA); OREDOYIN V AROWOLO (1989) 4 NWLR (Pt. 114) 172 and the case of OLORUNYOLEMI & ANOR V AKHAGBE (supra) all on the need to have complete record before the Court. The decisions are premised on the rules of Court as per Order 7 Rule 2(1) which states thus:
“All Appeals shall be by way of rehearing and shall be brought by Notice (hereinafter called “Notice of appeal’) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, stating whether the whole part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the Appeal, which shall be accompanied by a sufficient number of copies for on such parties.”
It is obvious that the Notice of Appeal filed stated in full all the names of the parties but the Record of Appeal did not state all the Respondents in this Appeal and that is the target of the objection. All other processes are in compliance with the rules of Court in naming parties. The Record of Appeal was compiled by the Registrar of the Court below in compliance with the rules of Court and therefore it would be unfair to visit the failure to name all the Respondents on the Record of Appeal on the Appellant, see EMEKA NWANA V FCDA (2007) 4 SCNJ 433. Furthermore, the Court on incomplete record held that the Appeal could be heard if the missing part of the Record of Appeal is not relevant to the determination of questions in issue in the Appeal. The missing names of other Respondent on the Record of Appeal cannot occasion a miscarriage of justice nor mislead the Respondents because the Notice of Appeal which is the originating process bears all the full names of the Respondents. The missing part has nothing to do with the substance of the Appeal, in the opinion of the Court, the Appeal can heard with incomplete names of Respondents on the Record of Appeal, see OKOCHI & ORS V ANIMKWOI & ORS (2003) LPELR- 2455(SC) where the Apex Court held thus:
“As an Appellate Court hears an Appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the Appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record.” Per TOBI, J.S.C (of Blessed memory).Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: THE INHERENT AND STATUTORY JURISDICTION OF COURTS TO ENCOURAGE SETTLEMENT AMONGST PARTY.

It is trite that all Courts have inherent and statutory jurisdiction to encourage settlement amongst parties and that is what has snowballed into what is today known as Alternative Dispute Resolution (ADR). Even the Appellate Courts have now embraced the process as an alternative means of dispute resolution. The Court and the apex Court now ADR centers. The Federal High Court Act specifically by Section 17 provides thus:
“In any proceedings in the Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.”
Furthermore, by the rules of the same Federal High Court also by Order 18 Rule 1, the trial Judge has the power to allow time to parties to explore amicable settlement. It provides thus:
“Where a matter comes before the Court for the first time, the Judge shall in circumstances where it is appropriate, grant to the parties, time, not more than thirty days within which parties may explore possibilities for settlement of the dispute.”
In exercising its right to suggest or direct settlement, the trial Court acted within the law. None of the provisions cited above required the Court to call on parties to express any opinion whatsoever before the order for parties to explore amicable settlement is made. The provisions quoted above also did not say that it can only be made on the application of parties. Indeed, it is a duty for the Court to encourage amicable settlement, see CITEC INTERNATIONAL ESTATES LTD V MINISTER OF FCT & ORS (2018) 45955 (CA) where ABOKI, JCA said:
“Where a matter has been filed in Court, the parties are not precluded from exploring avenues for an amicable settlement of their dispute out of Court. It is the duty of Courts to encourage parties to peacefully settle their disagreements out of Court. It is not the business of a Court to insist or compel the parties to complete their case before it, more so, where there is room for amicable settlement.”
The Appellant missed it when he challenged the powers of the trial Court to encourage settlement. It is an exception to the rule against a Court making an order suo motu. It did not in any affect the substance of the claim before it. The statutory power did not require the Court to get the consent of parties. In an amicable settlement, it will solely be what the parties agree upon and no longer the decision of the Court which will be imposed on the parties. The Appellant in response to Respondents briefs also alleged that the order was final, this again is a flawed understanding of the power of the Court below to encourage settlement. That order cannot be final of the Court, what constitutes a final order of the Court was explained in the case of UBN V BONEY MARCUS IND. LTD & ORS (2005) LPELR- 3394(SC) thus:
“A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication… This Court, in Odutola v. Oderinde (2004) 12 NWLR (Pt.888) 574 re-stated the position of the law in this respect. The Court, per Kutigi, JSC held: “An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the Court is such that the matter would not be further brought back to the Court itself, as in this case.” See Akinsanya v. United Bank for Africa Ltd. (supra); See also Western Steel Works Ltd. v. Iron and Steel Workers Union (supra); Omonuwa v. Oshodin & Anor.(supra).”
It’s strange to contemplate that an order encouraging parties to consider an amicable settlement is a final order. What, I may ask did the Court below determined by that order as to the rights of the parties in the claim initiated by the claimants before the trial Court? The claim has not even started when the claim was at the stage of joinder of parties and the Court has not taken a step in determining any of the applications before the trial Court. The beauty of judicial proceedings is it observance and adherence to rules of procedure, see OFORKIRE & ANOR V MADUIKE & ORS (2003) LPELR-2269(SC) which held thus:
“It is elementary law that rules of Court must be obeyed or complied with, as they are not made for fun. In Solanke v. Somefun (1974) 1 SC 141, Sowemimo, JSC (as he then was) opined: “Rules of Court are meant to be complied with…. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that make for quicker administration of justice.” See also Ibodo v. Enarofia (1980) 5-7 SC 42; Ania v. Obabiolorun-Kosi (1986) 2 NWLR (Pt. 22) 316; Olusesi v. Oyelusi (1986) 3 NWLR (Pt. 31) 634; John v. Blakk (1988) 1 NWLR (Pt. 72) 648; Government of Imo State v. Greeco Construction and Engineering Associates Ltd. (1985) 3 NWLR (Pt. 11) 71; Dambam v. Lele (2000) 11 NWLR (Pt. 678) 413.” Per TOBI, J.S.C Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: JURISDICTION –THE IMPORTANCE AND THE JURIDICTION OF COURT OF APPEAL.

On the challenge to jurisdiction, it is indeed fundamental and a necessity to every proceeding. Lack of it will always nullify the proceedings. See IKPEKPE V WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR- 44471(SC) which held thus:
“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated there from are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO,J.S.C.
Jurisdiction can be raised at any time and even at the Appeal stage of proceedings and even at that, parties who are Respondents to the process challenging jurisdiction must be duly served and given an opportunity to react before the Court rules on the challenge. It beats my imagination that a counsel will be so aggrieved with a judge for encouraging parties to attempt settlement and for also not taking his motion challenging jurisdiction when the motion has not even been served, a motion on notice that was filed same day. Even if the motion were an ex parte motion, the judge is not under any compulsion to take it same day, he has discretion in determining when to take the motion. There is no statutory provision placing such responsibility on the Court. The importance of jurisdiction cannot over ride rules on service and when or how a motion on notice should be processed and determined. I totally disagree with the Appellant who is under a misapprehension or misconception of the law, therefore devoid of merit, a delusion. The power bestowed on the Court by Section 15 is wide but circumscribed by conditions that must exist before the Court can exercise the power. It provides thusly:
“The Court of Appeal may from time to time make any order necessary to determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its …in any question which the Court of Appeal thinks fit to determine before trial Judgment in the appeal, and may make an interim action or grant any injunction which the Court below is authorized to make or grant and may direct as necessary inquiry or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceeding as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the passage of such re-hearing or may give such other directives as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in the Court’s appellate jurisdiction, and the case to be re-heard by the Court of competent jurisdiction.” This wordy and all embracing provision is not without limitation. The Court of Appeal cannot have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of appeal as a Court of first instance unless all the conditions listed in a plethora of cases exist.
Conditions that must exist before the Court can invoke and exercise its powers in this section have been set out, seeEZEIGWE V NWAWULU & ORS (2010) LPELR-1201(SC) wherein it held as follows:
“In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply, the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” Per ONNOGHEN, J.S.C
Without waste of precious time of this Court, the motion on Notice that the Appellant seeks this Court to invoke its powers under Section 15 to determine same was not served on the respondents and therefore not ripe for hearing even before the trial Court so the third condition which requires that all materials must be available to the Court for consideration is absent. No service on the respondents and therefore they are not to react. To consider it would obviously breach the right of Respondents to fair hearing before this Court. Per YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MARCEL JACHIN ANYIAM APPELANT(S)

And

SAMUEL ANYAKORA 2. HUMPHREY EZIKE 3. EUGENE OKOLI 4. LIVINUS NWOKIKE 5. DAN ANARUAGU 6. GERALD OGWO 7. AKACHUKWU OFUNNE 8. CHRISTIAN NWAKENTA 9. COLLINS ILOKA 10. ALFRED OKAFOR 11. PHILIP NSUDE 12. MIKE IFEATU 13. J.C ANIAKAOR 14. EMENIRU SABASTINE 15. OKEKE JOSEPH 16. ENEMUO SUNDAY 17. FRANCIS CHUKWUDI 18. UCHE EMENIKE 19. EMEKA OKEZUE 20. JOHN EZE 21. MIKE OKOYE 22. OZOEMANA EMOKE 23. EJIOFOR GEOFREY 24. JAMES OBIORA 25. IKECHUKWU EZE 26. UDEKWE CHINWEUBA 27. IWUNOR ANUMUDU 28. MAXIMUS UBA 29. INDEPENDENT NATIONAL ELECTORAL COMMISSION 30. PEOPLES DEMOCRATIC PARTY (PDP) 31. CHIEF NDUBISI NWOBU RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This interlocutory Appeal is against the Ruling of the trial Court, the Federal High Court sitting in Abuja delivered by Hon. Justice I. E. EKWO on the 28th January, 2020 in SUIT NO: FHC/ABJ/CS/1586/2019 wherein the trial Judge during the day’s proceedings directed the parties particularly the 30th Respondent to bring parties together to explore out of Court settlement of the case and gave 30 days and report settlement back to Court. The Appellant alleged that the order was made suo motu and without jurisdiction. Dissatisfied with the said order, the Appellant filed a Notice of Appeal on the 31st January, 2020 setting out 2 grounds of Appeal.

The facts leading to the Appeal are amenable to brief summary. The suit was initiated by the 1st-28th Respondents by way of Originating summons challenging the delegate list of the 30th Respondent (PDP) for Anambra State Congress. The Appellant by way of motion sought to be joined in the suit (page 974 to 1392 Vol.2 of the Record). The application was granted on the 23rd January, 2020 and the suit adjourned to 28th January, 2020 to determine

other applications, one of which was 1st-28th Respondent’s application to amend the Originating Summons and another for joinder of a party. The order was made on the 28th January, 2020 and on the same day the Appellant filed a preliminary objection challenging the jurisdiction of the Court. Dissatisfied, the Appellant filed the appeal.

The Appellant’s Brief settled by CHIEF C.N. NWAGBO ESQ., is dated 25th February, 2020 and filed on the same day. The Appellant distilled 2 issues for determination as follows:
1. Whether the trial Court was right in assuming jurisdiction to suo motu make the orders it made on the 28/1/2020 complained against in this appeal.
2. Whether the suo motu orders of the trial Court breached the fundamental right to fair hearing of the Appellant in not allowing the Appellant to address it on those orders and in not hearing the motion on Notice challenging its jurisdiction to entertain the suit as constituted at the trial Court.

The 1st -28th Respondent’s Brief settled by ADEOLA ADEDIPE ESQ., is dated 19th day of May, 2020, filed on the same day and it donated 2 issues for determination thusly:

Whether the trial Court was right in assuming jurisdiction to suo motu make an order it made on the 28th, January, 2020 complained against in this Appeal.
b. Whether the suo motu orders of the trial Court breached the fundamental Right to fair hearing of the Appellant in not allowing the Appellant to address on those orders and in not hearing the motion on Notice challenging its jurisdiction to entertain the suit as constituted at the trial Court.
The 29th Respondent did not file a brief in this Appeal.

The 30th Respondent’s Brief settled by EMMANUEL ENOIDEM, ESQ., is dated 2nd day of June, 2020 and filed on the 3rd day of June, 2020. The 30th Respondent adopted the two issues donated by the Appellant for resolution in this Appeal.

The 31st Respondent’s Brief settled by AGADA ELACHI (Ph.D) ESQ., is dated 17th day of March, 2020. It formulated 2 issues for determination as follows:
i. Whether the trial Court erred in law when it ordered the 30th Respondent (2nd Defendant’s at the trial Court) to take steps to amicably resolve the subject matter of this case and file a report which the Court will give consideration to.

Whether the order of the honourable Court directing the 30th Respondent (2nd defendant’s at the trial Court) to take steps to attempt to resolve the subject matter of this case amicably and file a report which the Court will give consideration to breached the Appellants right to fair hearing in the matter.The 1st-28th Respondents and 30th Respondent also filed Preliminary objections to the hearing of the Appeal. The Rules of the Court requires that a preliminary objection taken must be resolved before taking any step in the Appeal and because the import of a preliminary is to terminate the Appeal in limine, see the case of KLM ROYAL DUTCH AIRLINE V ALOMA (2017) LPELR-42588(SC) where the Apex Court held thus:
“The purpose of a preliminary objection is to truncate the hearing of an Appeal in limine. It is raised where the Respondent is satisfied that there is a fundamental defect in the Appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the

competence of some grounds of Appeal, the best procedure is by way of motion on Notice. The reason is that the success of the objection would not terminate the hearing of the Appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, J.S.C

It is settled that where a preliminary objection succeeds there would be no need to go further to consider the arguments in support of the issue or issues for determination in the appeal. See NATIONAL ELECTRIC POWER AUTHORITY V. ANGO (2001) 15 NWLR (PT. 737) 627 at 646 and ANPP V. THE RETURNING OFFICER, ABIA STATE SENATORIAL DISTRICT (MR. FESTUS UKAGWU) & 2 ORS (2005) 6 NWLR (PT. 920) 140 AT 170.
The 1st-28th Preliminary objection states:
“TAKE NOTICE that at the hearing of this Appeal, the 1st to 28th Respondent/Applicants intend to rely on the following objections notice whereof is hereby given to you viz:
“This Honourable Court lacks both substantive and procedural jurisdiction to

entertain this Appeal.”
ALSO TAKE NOTICE that the grounds for this objection are as follows:
1. This Appeal is spent hypothetical, academic and devoid of any practical utilitarian value.
2. This is an interlocutory Appeal against the exercise of the discretion of the trial Federal High Court: Hon. Justice I. E. Ekwo but no leave was sought and obtained before the said notice of appeal was filed – in violation of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. Both the Record of Appeal transmitted on 10th February, 2020 and appellant’s brief of argument filed on 25th February, 2020 are manifest incompetent: thus denying the Court of procedural jurisdiction to entertain them.
TAKE FURTHER NOTICE that the 1st – 28th Respondent/Applicants shall be praying this Honourable Court for the following reliefs:
1. AN ORDER dismissing this appeal in limine, same having become spent, hypothetical, academic and void of any practical utilitarian value, wherewith the jurisdiction the Court can be activated.
Alternatively
2. AN ORDER of this Honourable Court, striking

out/dismissing this Appeal in its entirely, for incompetence and manifest violation of Section 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Alternatively
3. AN ORDER striking out both the record of appeal and Appellants brief of argument, for incompetence and lack of procedural jurisdiction.
4. AND FOR SUCH ORDERS or other orders, this Honourable Court may deem fit to make in the circumstance.

The 1st-28th Respondents in support of the Preliminary Objection proffered arguments in respect of the main ground and in the alternative sought for some reliefs as follows:
RELIEF 1:
The 1st – 28th Respondent submits that this Appeal is spent, academic, and hypothetical, it affords no utilitarian value wherewith the jurisdiction of this Court can be activated. It is trite that the Courts are always loathed in pursuing academic issue in vain proceedings. The Respondents states that the gravamen of this appeal is against the exercise of discretion of the trial Judge in asking the parties to attempt settlement in line with Order 18 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The 1st-28th Respondents states that the order of settlement was made on 28th January, 2020 and parties were given three weeks to attempt settlement at page 1464-1466 of Volume 2 of the Record. Upon the application of the 30th Respondent on 19th February, 2020, the Court further extended the time for another three weeks and thereafter adjourned it to 11th March, 2020. On the said adjourned date, the 30th Respondent (PDP, whom the Court directed to attempt settlement among all the parties) did inform the Court that settlement had failed by implication, the act was not accomplished.

Further, the 1st-28th Respondents submitted that given the above position and grouse of the Appellant in the Appeal, it is safe to say that the instant Appeal (though frivolous in nature) is already spent, academic and void of any utilitarian value. It has been said that a suit is considered academic where it is merely theoretical, makes an empty sound and of no practical utilitarian value to the Appellant even if the Judgment is given in his favour. So much of this was said by the apex Court in ARDO V. INEC & ORS. (2017) LPELR-41919(SC); SOUTH AFRICAN AIRWAYS V. PROSOFT

TECHNOLOGIES LTD (2016) LPELR-40573 (CA) and OKE & ANOR V. MIMIKO & ORS (2013) ALL FWLR (PT. 693) 1853.

The 1st-28th Respondents submit that this particular Appeal was instituted in bad faith, and a ploy to delay proceeding at the trial Federal High Court. The Respondents states that this bad faith is further amplified by the fact that the Appellant who was freshly joined by the Court, could not even wait that the originating summons be amended to reflect his name, before appealing to this Court, and halting further conduct of proceedings at the trial Federal High Court.

They urge the Court to dismiss this Appeal in limine, same having become academic.

RELIEF 2:
The 1st-28th Respondents states that in the unlikely event that relief 1 is refused, they seek the 2nd relief in the alternative.

It is the contention of the 1st – 28th Respondent on this threshold issue and that it finds support in the provisions of Section 241-242 of the 1999 Constitution (as amended). The above sections clearly state that interlocutory Appeals with grounds of fact alone or of mixed law and fact shall not be heard and determined without the leave of

Court sought and obtained. Non-compliance with these provisions not only renders the Appeal incompetent, but it also deprives the Court of the jurisdiction to entertain same.

The 1st-28th Respondents further stated that they have shown in the course of this brief, that the crux of Appellant’s appeal challenges exercise of the discretion of the trial judge in directing the parties to attempt settlement (Page 1466, Vol. 2 of the Record). They submitted that the aforementioned constitutional provisions has been given judicial interpretation in several decisions, one of which is the case of NDIC V. JACKSON DEVOS LTD (2014) LPELR-23378 (CA) 30 and also ANDREW & ANOR V. INEC & ORS (2017) LPELR-42161(CA).

The Respondents state that authorities cited above support the fact that the Appeal is not only predicated on grounds of mix law and fact, and that failure to obtain leave renders same incompetent. That failure of the Appellant to obtain the leave of Court before instituting this Appeal is a very fundamental issue of law which borders on the jurisdiction of the Court to adjudicate upon the Appeal, citing EGHAREVBA V. ERIBO (2010) 9 NWLR (PT. 1199) P. 411 in support.

The Respondents submit that under the Nigerian legal system, Courts are a creation or creature of statutes or legislations such as the grundnorm itself, that is, the Constitution. The Respondents state that since Courts are creatures of statutes, their jurisdiction is confined, limited, restricted and circumscribed by the statute creating them. It follows that failure of the Appellant to obtain leave of Court as provided under the Constitution deprives the Court of powers to adjudicate over this Appeal.

Furthermore, that it is elementary and immutably trite that where the law provides for the mode/method to be followed in doing an act, that mode, and no other, must be strictly followed, referred to OKPALAUZUEGBU V. EZEMENARI (2011) 14 NWLR (PT. 12680 492 at 524-525 and ABUBAKAR V. NASAMU (No.2) (2012) 17 NWLR (PT. 1330) 407 at 590; COKER V. UBA PLC (1997) LPELR-880; BOWAJE V. ADEDIWURA (1976) 6 SC 143 and AMUDIPE V. ARIJODI (1978) 9-10 SC 27.

Finally, the 1st-28th Respondents urged that bearing in mind the foregoing fundamental errors, there is no doubt that this Appeal is lacking, and same ought to be struck out with

substantial cost against the Appellant.

RELIEF 3:
The 1st -28th Respondents arguing in support of this relief and ground, referred to Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, which mandatorily stipulates that all Appeals “shall be by way of rehearing and shall state the names and addresses of all parties directly affected by the Appeal”. Flowing from above, the corollary effect is that an Appeal is a continuation of the original suit and not an inception of a new action. Furthermore, it is submitted that in the present Appeal, the Appellant cannot unilaterally pick and choose, as it did to list only the name of the 1st Respondent, Samuel Anyakorah (with a suffix & 30 ORS) as the sole Respondent to the Appeal, thereby removing the name of other 30 Respondents from the Record of Appeal.

Furthermore, in the case at hand it is self-evident from the Record of Appeal transmitted to this Court, that the Appellant (whose name is yet to be reflected on the processes at the lower Court), strangely and curiously too, in initiating the instant Appeal, picked and chose only Samuel Anyakorah as the sole Respondent, and

unilaterally removed Humphrey Ezike, Eugene Okoli, Livinus Nwokiki, Dan Anaruagu, Gerald Ogwo, Akachukwu Ofunne, Christain Nwakenta, Collins Iloka. Alfred Okafor, Philip Nsude, Mike Ifeatue, J.C Aniakor, Emeniru Sebastine, Okeke Joseph, Enemuo Sunday, Francis Chukwudi, Uche Emenike, Emeka Okezue, John Eze, Mike Okoye, Ozoemana Emoke, Ejiofor Geofrey, James Obiora, Ikechukwu Eze, Udekwe Chinweuba, Iwunor Anumudu, Maximus Uba, Independent National Electoral Commission, People Democratic Party (PDP) and Chief Ndubisi Nwobu who are the 2nd – 31st Respondents from the Record of Appeal.

They submitted that the issue of an incompetent/incomplete Record of Appeal is a very germane point of law which bears on the jurisdiction of the Court to adjudicate upon the Appeal and that it is trite that the competence of a Court in the exercise of its jurisdiction is conterminously guaranteed if: (a) it is properly constituted with respect to the number and qualification of its membership, (b) the subject-matter of the action is within its jurisdiction, (c) the action is initiated by due process of law and (d) any condition precedent to the exercise of its

jurisdiction has been fulfilled, they referred to the locus classicus case of MADUKOLU V. NKEMDILIM (1962) 1 ALL NRL P. 587 and OHAKIM V. AGBASO (2010) 19 NWLR (PT. 1226) 172 at 243-244.

Continuing, the Respondents submit that the law is now unwaveringly settled that, it is the duty of an Appellate Court to ensure that it does not adjudicate upon an Appeal with incomplete or defective Record of Appeal. An Appellate Court will be devoid of competence to make such pronouncements affecting the rights of the parties before it without the aid of all the materials used by them at the lower Court, thereby defeating the ends of justice.

The first set of Respondents state that where an Appellant, as in the present Appeal, unilaterally removes the name of any of the original parties from the Record of Appeal, the entire Appeal becomes incompetent and liable to be struck out. On this position, the respondents place reliance on the Supreme Court decision in NWAOGU V. ATUMA (No. 1) (2013) 9 NWLR (PT. 1358) 113 at 134 and OREDOYIN V. AROWOLO (1989) 4 NWLR (PT. 114) 172 at 211 and OLORUNYOLEMI & ANOR V. AKHAGBE (2010) LPELR-2597 P. 15-16(SC).

They urge the Court to uphold their submissions and accordingly grant the alternative reliefs sought in the notice of Preliminary Objections.

PRELIMINARY OBJECTION BY 30TH RESPONDENT
The 30th Respondent’s Notice of Preliminary Objection filed separately, the grounds and reliefs sought are reproduced thus:
TAKE NOTICE that the 30th Respondent/Applicant shall before the hearing of this Appeal and all other applications based on same, raise and urge this Preliminary Objection, praying this Honourable Court to dismiss and/or strike out this Appeal for lack of competence and want of both substantive and procedural jurisdiction on the part of this Honourable Court to entertain this Appeal.
ALSO TAKE NOTICE that the grounds of this objection are as follows:
1. This Appeal is spent, hypothetical, academic and devoid of any practical utilitarian value.
2. This is an interlocutory Appeal against the exercise of the discretion of the trial Federal High Court; Coram: Hon. Justice I. E Ekwo, for which leave is required but no leave was sought and obtained before the said notice of appeal was filed – in violation of Sections 241 and

242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
3. Both the Record of Appeal transmitted on 10th February, 2020 and Appellant’s brief of argument filed on 25th February, 2020 are manifestly incompetent; thus denying the Court of procedural jurisdiction to entertain them.

TAKE FURTHER NOTICE that the 30th Respondent/Applicant shall be praying this Honourable Court for the following reliefs:
1. AN ORDER dismissing this Appeal in limine, same having become spent, hypothetical, academic and void of any practical utilitarian value, wherewith the jurisdiction the Court can be activated.
Alternatively
2. AN ORDER of this Honourable Court, striking out/dismissing this Appeal in its entirety, for incompetence and manifest violation of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Alternatively
AN ORDER striking out both the Record of Appeal and Appellant’s brief of argument, for incompetence and lack of procedural jurisdiction.
3. AND FOR SUCH ORDERS or other Orders, Honourable Court may deem fit to make in the circumstance.

The 30th Respondent’s submissions in respect of the Preliminary objection are in exact terms with the arguments proffered by of the 1st -28th Respondents and therefore there will be no need to repeat them here.

APPELLANT’S RESPONSE TO PRELIMINARY OBJECTION
The Appellant submits on relief 1 of the Preliminary Objection as canvassed by the 1st – 28th Respondents that relief one is frivolous and a palpable misunderstanding and misinterpretation of both the orders of the trial Court. He contended that the order made by the trial Court was made without jurisdiction and in breach of the fundamental right to fair hearing which are constitutional issues and therefore cannot be dubbed as academic, spent hypothetical and devoid of any practical utilitarian value.

The Appellant also submits that the trial Court wrongly assumed jurisdiction to make the said suo motu order without inviting the parties to address it in the face of the challenge to its jurisdiction by way of motion on the notice filed by the Appellant at pages 1393-1450 of Vol. 2 of the Record. Further, the Appellant submits that the arguments of the 1st – 28th Respondents were

not based on the record, it is frivolous and a clear misunderstanding of the threshold issue of jurisdiction which can be raised at any time even on appeal. Citing OLUBUMI OLADIPO ONI V. CADBURY NIGERIA PLC (2016) 9 NWLR (PT. 1516) 80 AT 105, NNPC & ANOR V. CHIEF STEPHEN ORHIOWASELE & 2 ORS (2013) NWLR (PT. 1371) 211 AT 231 and D.E.N.R LTD V. TRANS INT’L BANK LTD (2008) 18 NWLR (PT. 1119) 388 at 42.

The Appellant submits that all the judicial authorities cited by the 1st -28th Respondents are inappropriate and do not apply to this Appeal.

RELIEF 2
The Appellant on relief two will fail woefully because the orders was made suo motu and upon the trial Court wrongfully assuming jurisdiction without deciding the motion challenging its jurisdiction at pages 1393-1450 of Vol. 2. Furthermore, he argued that the order was not a discretionary order, because it was made they without any party applying for them. The Appellant further contended that an opinion of a Court is a final decision pursuant to Section 318(1) of the 1999 constitution as altered and which is appealable without leave of Court because the grounds of appeal are on

jurisdiction and fair hearing, both being grounds of pure law based on the 1999 Constitution as altered. He submitted that this Appeal is competent and the trial Court does not have the requisite constitutional and subject matter jurisdiction to hear the suit.

Continuing, the Appellant submit that this Appeal falls squarely into the category (1) grounds of Appeal which are purely and simply on point of law which requires no leave of the trial Court. The Appellant argue that all the cases relied on in support of their argument on relief 2 are not applicable as the orders were not discretionary. They were final orders and the grounds of Appeal are on pure points of law, relying on AGHAEGBUNAM ILOABACHIE & 2 ORS V. ANOSIKE ILOABACHIE (2007) ALL FWLR (PT. 383) PG. 173 at 176.

Finally, the Appellant submit that the judicial authorities cites by the 1st – 28th Respondents in support of their argument that where a law provided a particular procedure for doing a particular act, that procedure must be followed does not apply to this Appeal as the grounds of Appeal are on pure law, jurisdiction and fundamental right of fair hearing which are

constitutional issues and grounds of law which the Appellant does not require leave to Appeal.

RELIEF 3
The Appellant submits that the Record of Appeal was transmitted by the registry of the trial Court and the Notice of Appeal contains the names of all the parties to the appeal as seen on pages 1493-1499 as well as the Appellants brief of argument filed on 25/2/2020 in compliance with the rules of this Court particularly Order 7 Rules 2(1) of the Court of Appeal Rules 2016. Further, the Appellant submits that they cannot and ought not to be visited with the errors of the trial Courts registry if it is an error which is not admitted in stating only at the cover pages of volume 1 and 2 of the Record, citing ONUEGWUNWOKE V. CHIEF MRS CHRISTY O.N. OKOYE & 4 ORS (2010) 41 NSCQR VOL. 41 (PART 1) 46 at 64 in support.

The Appellant submits that at best, the 1st – 28th Respondents are challenging the record and have the bounden duty to transmit the record as they want, as held in SOMMER V. FHA (1992) VOL. 1. NWLR (PART 219) at PG 557-558 and NWORA V. NWABUEZE (2011) VOL. 48 NSQLR 256. Furthermore, the Appellant submits that the Record of

Appeal is complete as transmitted by the registry of the trial Court and the 1st – 28th Respondents is entitled to transmit supplementary record to supply the missing part of the Record if there are any which is not admitted.

The Appellant states that the Preliminary Objection of the 1st – 28th Respondents and arguments thereon stand on nothing and urge this Court to dismiss the 1st – 28th Respondent’s Preliminary Objection.

APPELLANT’S RESPONSE TO THE 30TH RESPONDENT’S PRELIMINARY OBJECTION
The Appellant submits on relief 1 of the Preliminary Objection canvassed by the 30th Respondent is frivolous and a palpable misunderstanding and misinterpretation of the order of the trial Court at page 1466 of vol. 2 and Order 18 Rules 1 of the Federal High Court (Civil Procedure) Rules, 2019.

The Appellant further submits in line with his response to the first set of Respondents in respect of all reliefs. It will no useful purpose repeating the submissions here.

The Appellant submit that all the judicial authorities cited by the 30th Respondent is inappropriate and do not apply to this Appeal.

The Appellant states that the whole Preliminary Objection of the 30th Respondent and arguments thereon stand on nothing, they collapsed and they submit that on the premise of their argument against the said preliminary objection, same is not sustainable.

RESOLUTION OF PRELIMINARY OBJECTION
Having noted that the Preliminary Objections are the same in all material respects, the Court shall resolve them holistically to avoid repetition.

The 1st-28th and 30th Respondents challenged the trial Court’s jurisdiction on a number of issues or points. The primary one is Appellant’s failure to seek and obtain leave to Appeal the alleged ruling being an interlocutory appeal. It is settled that the Constitution of the Federal Republic of Nigeria created two classes of Appeal. One is as of right under Section 241 and the other with leave of Court created by Section 242 which provides thus:
“242. (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court Appeal.”

Section 241 of the Constitution gives right of Appeal to some situations as listed therein, it says:
“241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases – (a) final decisions in any Civil or Criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings; (c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person; (e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; (f) decisions made or given by the Federal High Court or a High Court -” (i) where the liberty of a person or the custody of an infant is concerned, (ii) where an injunction or the appointment of a

receiver is granted or refused, (iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and (v) in such other cases as may be prescribed by any law in force in Nigeria.”
The ruling Appealed against was certainly not a final decision of the trial Court in the suit. The only way an Appeal in an interlocutory decision without leave is when the ground of Appeal is a ground of law and not mixed law and fact or ground of fact. It should be noted here too that a ground contesting the jurisdiction of the Court does not require leave of Court. We have to view the Notice of Appeal to determine the category the grounds therein fall. The Notice of Appeal filed on the 31st January, 2020 has just two grounds of Appeal. The legal position has been that it is not how the Appellant labels or classifies a ground but the Court has to examine to see if it truly qualifies as such a ground. The Appellant tagged the

grounds as errors of law. I have examined the grounds and I find the first ground challenging the jurisdiction of the Court below while the second alleges a breach of fair hearing which is a constitutional requirement and therefore both grounds are questions of law which could be heard without leave of Court, see MOBIL PRODUCING UNLTD V PEPPLE (2019) LPELR-47473(CA) where I said:
“The right of Appeal is determined by two factors – the nature of the appeal and the party exercising the right. Where the appeal falls within Section 241(1) of the Constitution, an appeal lies as of right. Where the appeal does not fall within Section 241(1) of the Constitution, Section 242(1) applies. In other words, leave is required. The right of appeal conferred by Sections 241(1) does not require leave of the Court, see CHUKWU & ORS VS. INEC & ORS. (2014) LPELR-25015 (SC). The issue in contention here is the nature of the grounds which the Respondent contends are grounds of mixed law and fact and because it arose from an interlocutory ruling. Let me disabuse the wrong and misleading submission that all grounds of appeal arising from interlocutory ruling must be

grounds of mixed law and fact. The right of appeal is constitutionally provided for and therefore it is thus circumscribed. Therefore once the grounds of appeal are grounds of law, there is no need of leave because appeal can lie as of right whether the appeal is from a final judgment or an interlocutory appeal. The nature of grounds of appeal in an interlocutory appeal determines whether leave is required or not. The Appellant submits that the grounds of appeal are grounds of law. The apex Court classified grounds of appeal generously and admitted that there is a thin line of difference between grounds of law and grounds of mixed law and fact, see CHROME AIR SERVICES LTD & ORS. VS. FIDELITY BANK (2017) LPELR-43470(SC) which held thus: “It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Over time, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal

questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See: Odunukwe vs. Ofomata (2010) 18 NWLR (pt. 125) 404; Metal Construction (W.A.) Ltd. Vs. Migliore (1990) 1 NWLR (Pt. 126) 299; Ogbechie vs Onochie (1986) 2 NWLR (Pt. 23) 484; Anukam vs. Anukam (2008) 5 NWLR (Pt. 1081) 455. I reproduced the 4 grounds in this appeal and they set out a challenge to jurisdiction and breach of right to fair hearing and I am of the respectful view that they evince issues of law and there are fundamental. Jurisdiction is so important and fundamental that it can be raised orally and even at the appellate Court for the first time, see SALISU & ANOR VS. MOBOLAJI & ORS. (2013) LPELR-22019(SC) wherein the apex Court held: “It is not out of place to stress that the issue of jurisdiction is a threshold one which this Court, in Elugbe vs. Omokhafe (2004) 11-12 SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court, the proceedings would come

to naught and remain a nullity if same were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See Petrojessica Enterprises Ltd. vs. Leventis Technical Co. Ltd. (1992) 6 SC (part 11) 1; Katto vs. CBN (1991) 11-12 SC 176; Oloriode vs. Oyebi (1984) 5 SC 1; Ezomo vs. Oyakhire (1985) 2 SC 260 at 282 and Lado & 43 Ors vs. CPC & 53 Ors (2011) 12 SC (part 111) 113.” It is also indubitable that fair hearing is a pillar in the administration of justice which has constitutional backing. Any allegation of its breach would definitely be a ground of law and not mixed law and fact.”
The objection alleging failure to seek leave before filing the Appeal is unmeritorious and is hereby discountenanced.

The other point in issue from the objection is that the Appellant’s Record of Appeal is incompetent because the Appellant failed to list out all the names of the Respondents on the Record of Appeal. It is trite that an Appeal is a continuation of hearing as settled by a plethora of cases, see NWAOGU v. ATUMA (SUPRA); OREDOYIN V AROWOLO

(1989) 4 NWLR (Pt. 114) 172 and the case of OLORUNYOLEMI & ANOR V AKHAGBE (supra) all on the need to have complete record before the Court. The decisions are premised on the rules of Court as per Order 7 Rule 2(1) which states thus:
“All Appeals shall be by way of rehearing and shall be brought by Notice (hereinafter called “Notice of appeal’) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, stating whether the whole part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the Appeal, which shall be accompanied by a sufficient number of copies for on such parties.”
It is obvious that the Notice of Appeal filed stated in full all the names of the parties but the Record of Appeal did not state all the Respondents in this Appeal and that is the target of the objection. All other processes are in compliance with the rules of Court in naming parties. The Record of Appeal was compiled by the Registrar of the Court

below in compliance with the rules of Court and therefore it would be unfair to visit the failure to name all the Respondents on the Record of Appeal on the Appellant, see EMEKA NWANA V FCDA (2007) 4 SCNJ 433. Furthermore, the Court on incomplete record held that the Appeal could be heard if the missing part of the Record of Appeal is not relevant to the determination of questions in issue in the Appeal. The missing names of other Respondent on the Record of Appeal cannot occasion a miscarriage of justice nor mislead the Respondents because the Notice of Appeal which is the originating process bears all the full names of the Respondents. The missing part has nothing to do with the substance of the Appeal, in the opinion of the Court, the Appeal can heard with incomplete names of Respondents on the Record of Appeal, see OKOCHI & ORS V ANIMKWOI & ORS (2003) LPELR- 2455(SC) where the Apex Court held thus:
“As an Appellate Court hears an Appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records and must not hear an appeal on

incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the Appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record.” Per TOBI, J.S.C (of Blessed memory).

The objectors also contended that the Appeal is academic and spent, therefore, of no utilitarian value in determining it. The argument of the

Appellant hinges on the challenge to the jurisdiction of the trial Court to direct parties towards amicable settlement of the suit. And because he filed a motion challenging the jurisdiction of the Court the same day the order was made, in his opinion, the trial Court should have taken his motion same day it was filed. In the opinion of the Appellant, the Court lacks jurisdiction to make the order and that in the process of making the order, Appellant’s right to fair hearing was breached. These are weighty allegations that the Court should determine in the main Appeal, the Court cannot delve into such substantive issues at this preliminary stage, it will serve the interest of justice to determine the issues which have been placed under the main Appeal. I therefore discountenance the objections of the 1st-28th and 30th Respondents.

MAIN APPEAL
ISSUE 1
The Appellant submits that the trial Court was not right in assuming jurisdiction to suo motu make the order it made, directing the 30th Respondent to unilaterally settle the issues in contention between the parties and report back to the trial Court, and this was when the trial Court knew

that the subject of litigation was within the internal affairs of the 30th Respondent, a political party registered in Nigeria over which no Court has jurisdiction. Appellant further contended that the issue is not justiciable.

Continuing, the Appellant submits that in the context of Nigerian jurisprudence with respect to matters within the internal affairs of political parties, no Court in Nigeria has jurisdiction to entertain them as they are not justiciable and he relied on ONUOHA V. OKAFOR (1983) 2 SCNLR 244. Furthermore, the Appellant submits that the trial Court should have known that the subject of litigation is within the internal affairs of a political party, ought to have instantly declined jurisdiction and not to make the order complained of in this Appeal, referred to Pages 1466 and 1488 of vol. 2 of the record.

The Appellant submitted that the only duty the trial Court had upon the challenge to its jurisdiction was to exercise on its interpretative jurisdiction to determine whether it has jurisdiction or not but not to suo motu make the orders complained of which is found at page 1466 and 1488 of vol. 2 of the Record and replying on

ELABANJO V. DAWODU (2006) ALL FWLR (PT. 326) at 604 SC.

The Appellant argued that the final Judgment of the High Court of the Federal Capital Territory was brought to the notice of the trial Court by the 1st-28th Respondents, the 30th Respondent and the Appellant, it was delivered in suit No. FHC/ABJ/CS/1586/2019 on the 24/5/2018 between MARCEL JACHIN ANYIAM V. 1. PEOPLES DEMOCRATIC PARTY (PDP) 2, UCHE SECONDUS 3. SIR CHUKWUDI UME-ABA. That it is a Judgment in rem which binds all the Respondents without exception all being parties to the suit and binds them equally and even if they were not parties to the suit until set aside by an Appellate Court of competent jurisdiction, which has not been done. Citing OGBORU V.UDUAGHAN (2011)17 NWLR (PT. 1277) 727 at 764 and NWORA V. NWABUEZE (2011) 17 NWLR (PT.1277) 699 at PG.719 in support.

The Appellant states that the 1st to 28th Respondent’s suit is caught by the principle of res judicata and all elements that qualify a suit to be res judicate are disjunctive and bar subsequent proceedings on the same subject matter. The subject matters of the suit are the wards, Local Government Congress of PDP Anambra State

chapter and are the same as the subject matter in the said Judgment in page 14022 of vol. 2. The Appellant placed reliance on ETIM V. OBOT (2010) 12 NWLR (P. 1207) 108, AMINU V. HASSAN (2014) 5 NWLR (PT. 1400) 287, 294, COLE V. JIBUNOH (2016) 4 NWLR (PT 1503) 499, 502-503 and ALAPO V. AGBOKERE (2010) 9 NWLR (PT. 1198) 3.

Continuing, the Appellant submit that even if the 1st-28th Respondents were to attack that Judgment, it has to be by way of Appeal to the Court of Appeal as required by the 1999 Constitution as amended and if it is to file a suit to set aside the Judgment, it has to be only on ground of jurisdiction or fraud to be filed in the same Court that gave the Judgment. He made reference to FAWEHINMI V. AG LAGOS STATE (NO. 1) (1989) 3 NWLR (PT. 112) 707 at 726 and GRACE AMANAMBU V. ALEXANDER OKAFOR & ANOR (1966) 1 ALL N.C.R. 205.

Also, the Appellant submits that the subject matter of the suit at the trial Court having been litigated upon, the suit of 1st to 28th Respondent at the trial Court constitutes an abuse of the process of Court and wanting in bona fide, and he urge the Court to dismiss the suit of the 1st-28th Respondents suit at

the trial Court, citing CHIEF KARIMU AJAYI ARUBO V. AIYELERU & 5 ORDS (1993) 1 SCNJ PG. 93.

He urge the Court to resolve issue 1 in favour of the Appellant and strike out or dismiss the 1st to 28th Respondent’s suit at the trial Court.

ISSUE 2
The Appellant submits that the order made suo motu by the trial Court breached the fundamental right to fair hearing of the Appellant as guaranteed him by Section 36(1) of the Constitution for the following reasons to wit:
The Appellant has filed a motion on Notice challenging the jurisdiction of the trial Court filed on 28/1/2020; the 30th Respondent also filed a Notice of Preliminary Objection challenging the jurisdiction of the Trial Court which was pending and not heard by the trial Court, but the trial Court assumed jurisdiction to make the order suo motu without deciding those objections challenging its jurisdiction and therefore breached the Appellant’s fundamental right to fair hearing in contravention of Section 36(1), 1(1) and 1(3) of the Constitution and relied on STATE V. ONAGORUWA (1992) 2 SCNJ (PT1) 1 AT 22 and BENETH OKERE V. PRINCE O.D AMADI & 3ORS (2005) ALL FWLR (PT. 269) 1925 AT 1934 PG. 1935.

The Appellant urge this Court to resolve issue 2 in his favour and nullify the order of the trial Court made on 28/1/2020 without inviting Counsel to address the trial Judge for being unconstitutional, null, void and of no effect having been made in breach of the constitutional right to fair hearing of the Appellant, citing AG FEDERATION V. GUARDIAN NEWSPAPERS (1999) 5 SCNJ 324.

APPELLANTS SUBMISSION ON THE INVOCATION OF SECTION 15 OF THE COURT OF APPEAL ACT
The Appellant submit that the conditions and factors that must be present for this Court to invoke its powers under Section 15 of the Court of Appeal Act to hear the Appellants motion challenging the jurisdiction of the trial Court as a Court of first instance are present in this Appeal and the relevant part of Section 15 of the Court of Appeal Act to this Appeal can be isolated as follows:
“The Court of Appeal generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may rehear the case in whole or in part.”

Continuing, the Appellant

submits that the fundamental conditions needed to be present for the Court to hear the Motion on Notice challenging the jurisdiction of the trial Court on the merit as a Court of first instance have been satisfied, it should determine the motion on the merit. That the factors are distilled from HON. MUYIWA INAKOJU & ORS V. HON. ABRAHAMM ADEOLU ADELEKE & ORS (2007) VOL. 2 M.J.S.C 1 and AGBAKOBA V. INEC (2008) 18 NWLR (PT.1119) 489 No. 2(2007) 45 SCNJ.

The Appellant submit that from the preponderance of authorities this is a proper case to invoke Section 15 of the Court of Appeal Act and all the preconditions for its invocation are present in this Court. He considered the preconditions seriatim to demonstrate that their presence as enumerated. The Appellant further submits that even if one of the preconditions is present, this Court ought to invoke Section 15 because the preconditions are disjunctive not conjunctive and also that the Grounds 1 and 2 in their Notice of Appeal meets this preconditions.

Appellant contended that all necessary materials are available to the Court or the trial Court to invoke Section 15 of the Court of Appeal Act,

relied on SHITTA-BEY V. AG FEDERATION (1998) 6 NWLR (PT. 570) 390.

On the need for expeditious disposal of the case or suit to meet the ends of justice, he argued that it apparent on the face of the materials presented. The Appellant submit that it is common ground between all the parties that this is an election matter within the 30th Respondent’s Anambra State Executive Committee which ought to be decided before the Governorship Election of November, 2021 which may get up to the Supreme Court in a time sensitive tenor of 4 years which is a dissipating res, citing WAMBAI V. DONATUS (2014) 14 NWLR (PT. 1427) 233, GWEDE V. INEC (2014) 18 NWLR (PT. 1438) and time is of essence, KHALIL V. YAR’ADUA (2003) 16 NWLR (PT.847) 446 at 473.

On the need for any injustice or hardship that will follow the case and the Appellant, if the case is remitted to the trial Court must be manifest, the Appellant submit if it is evident by the orders of the trial Court to remit back the case to the trial Court, then it should be for trial before another Judge. It is expedient to hear the Appellant’s Motion on Notice challenging the jurisdiction of the trial Court which has

a high chance of success in this Court than to remit the matter back to the trial Court since no oral evidence would be led and there is no likelihood of any of the parties appealing to the Supreme Court. He commend the decision in ODEDO V. OGUEBEGO (2015) 13 NWLR (PT. 1476) 229 AT 258-259 to this Court.

The Appellant urge the Court to exercise its unfettered discretion to invoke its powers to hear and determine the Appellant’s Motion on Notice challenging the jurisdiction of the trial Court and grant, consequently, strike out or dismiss the said suit at the trial Court in its entirety.

1ST – 28TH RESPONDENTS’ BRIEF SUBMISSION
Joint argument on issues 1 & 2
1. Whether the trial Court was right in assuming jurisdiction to suo motu make an order it made on 28th January, 2020 complained against in this Appeal (Ground 1).
2. Whether the suo motu orders of the trial Court breached the fundamental right to fair hearing of the Appellant in not allowing the Appellant to address on those orders and in not hearing the Motion on Notice challenging its jurisdiction to entertain the suit as constituted at the trial Court. (Ground 2)).

The Respondents submits that the entirety of the Appellant’s contentions vide paragraph 4.1-1.4 of his brief of argument completely missed the point and misconceived. The Respondents draws attention to the fact that the Appellant was only made a party by an order for joinder granted by Court, when the originating summons was yet to even be amended, for the purpose of adding the Appellants name. The Respondents states that they are surprised that the Appellant contends that the trial Court lacked jurisdiction to suo moto make an order for parties to explore settlement, that it is completely misplaced. The power of the trial Court to make the directive for out of Court settlement is derived from Order 18 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019.

It is from the said provision that the trial Judge, having considered the circumstance of the case before him, and in exercise of the discretion conferred on him by the rules, directed the 30th Respondent to broker settlement between all the parties to the suit. The Respondents relied on the cases of CITEC INTERNATIONAL ESTATES LTD V. MINISTER OF FCT & ORS (2018) LPELR-45955

(CA) P. 26, CROWN FLOUR MILLS V. OWODUNNI (2005) ALL FWLR (Pt. 255)1553 and OBAYIUWANA V. EDE (1998) 1 NWLR (PT. 535) 670.

The Respondents states that the Appellant filed the purported Motion on Notice on 28th January, 2020, the same day the matter came up for hearing of another application for joinder of a party, filed by Chief Emma Odum & Ors. The said Motion on Notice was neither in the Courts file nor served on the parties. Apparently, the purported Motion on Notice only existed only in the Appellants file. Further, the Originating Summons had not been amended to include the Appellant’s name as a party, because there was still a pending Motion for joinder, which the Court intended to dispose of one way or the other. It was to their amazement that the Appellant purportedly filed the Preliminary Objection. The Respondents questioned which Originating Process was the preliminary motion challenging? Could it be the initial Originating Summons, which must of necessity be amended in the light of the joinder? Or the intended amended Originating Summons? The Respondents states that clearly, the said motion was targeted at nothing, and was meant to

achieve nothing, but a spoiler’s game like this Appeal. It is an incompetent motion which is not meant to oppose any Originating Summons.

Further, the Respondents argue that without conceding that the Motion was at least served on the parties, the Respondents have 7 days, in line with the Rules of the Federal High Court, to reply to it, this means that the said Motion on Notice, as at 28th January, 2020 was not ripe for hearing going by Order 26 Rule 4. The Respondent states that they bear in mind that there are 31 Respondents in the suit who have probably wanted to react one way or the other. This did not have happen, because the Appellant must have his way in Court, against settled procedures.

In responding to the Appellants paragraph 4.5(a-e) of his brief, the Respondents submitted that either from the issues settled for determination, or from the Grounds of Appeal, such argument, together with every authority cited in support will go to no issue. In support of this submission, he rely on the case of UNITY BANK PLC V. AKPEJI (2018) LPELR-44995 (CA) P. 22-23.

Furthermore, the Respondents contended that the Constitution only requires that

an opportunity be given to a party to present his case before a decision is taken against him and does not allow a party the luxury of holding his adversary and Court to ransom. They relied onBILL CONSTRUCTION CO. LTD. V. IMANI & SONS LTD/SHELL TRUSTEES LTD (2006) LPELR-782 (SC).

On Section 15 of the Court of Appeal Act and the Appellant’s argument in paragraph 6, the Respondents submits that the submissions of the Appellant are not only misconceived but also unfounded because the Appellant has not satisfied the conditions required for this Court to invoke the powers of the Court of Appeal. The position of the law is that every Appeal must arise from issues canvassed and decided at the trial Court. The Appellate Court cannot assume jurisdiction over a matter that has not been decided upon by the trial Court.

Finally, the Respondents submit that the provision of Section 15 is not applicable in the instant application. This application has not met the conditions precedent for the invocation of the said section of the Act, consequently, all the authorities relied upon by the Appellant are not applicable. Further, they submit that it will occasion

no injustice or hardship to dismiss this Appeal or remit the said motion back to the trial Court for determination.

Finally, the Respondents urge this Court to discountenance the submissions of the Appellant under the instant for lacking in merit and dismiss with cost.

APPELLANT’S REPLY
The Appellant states that the suo motu order were not made in exercise of the trial Court’s discretion, that it was a final order based on the findings and opinion of the trial Court without affording the Appellant or any of the parties their right to address it on those orders. He further submitted that the trial Court ought not to make the 30th Respondent a sole Judge in its own cause particularly when it filed a Notice of Preliminary Objection.

The Appellant argued that the rules of Court do not confer jurisdiction on the Court and no time is fixed by the Constitution to challenge jurisdiction of the Court and the issue of jurisdiction can be raised at any time even on Appeal and is not raised in any manner. He relied on ELABANJO V. DAWODU (2006) ALL FWLR (PT. 326) at 604 SC and LAMBERT SUNDY IWUEKE V. IMO BROADCASTING CORPORATION (2005)

ALL FWLR (PT 288) 1025.

Further, the Appellant states that the trial Court never invited or gave them the opportunity to address it before the order was made a clear violation of Appellant’s fundamental right to fair hearing of the Appellant who has a pending Motion Notice which is an application is challenging the jurisdiction of the trial Court. He referred to TRANSNAV PURPOSE NAVIGASTION LIMITED V. VELCAN ENERGY HOLDING DUBAI LTD & ORS (2020) 7 NWLR (1723) 293 at 317.

Finally, the Appellant submits that the 1st – 28th Respondents do not have anything to urge this Court in their favour.

On Section 15 of the Court of Appeal Act, the Appellant submits that this Court does not consider speculations and the 1st – 28th Respondents’ preposterously submitted that the Motion on Notice filed by Appellant on 28th January, 2020 was not in the Courts file when the trial Court acknowledged all the processes in its file without any equivocation or exception at Page 1466 of Volume 2 of the record and the said Motion on Notice was filed and put in the Courts file before the Court sat on 28/1/2020 and the trial Court did not need to

decide it that 28/1/2020 but would have adjourned to exercise only its interpretative jurisdiction whether to entertain the substantive suit or not but it choose to begin to exercise the jurisdiction it did not have to make the order suo motu.

The Appellant further submit that this Appeal can invoke Section 15 to hear and determine the Appellant’s Motion on Notice challenging the jurisdiction of the trial Court as a Court of first instance.

Finally, the Appellant submits that this Appeal has merit and should be allowed.

THE 30TH RESPONDENT’S SUBMISSIONS
The 30th Respondent adopted Appellant’s issues and urge that the Appeal be dismissed with substantial cost for lacking merit.

The 30th Respondent submits that the entirety of Appellants contentions vide paragraph 4.1-4.4 of their brief, completely missed the point and are misconceived. The Respondent drew attention to the fact that the Appellant was only made a party by an order for joinder granted by trial Court when the Originating Summons was yet to be amended to include the Appellant’s name.

The 30th Respondent further adopts the arguments and cases

cited by the 1st – 28th Respondent in resolving the above issues including arguments on Section 15. The reply is also the same in content with the reply to the 1st-28th Respondents above. I shall not repeat them here.

The Appellant submits that the 30th Respondent does not have anything to challenge the appeal and urge the Court to allow this Appeal and grant the reliefs therein.

31ST RESPONDENTS BRIEF OF ARGUMENT
ISSUE 1
The 31st Respondent submit that the decision of the trial Court to have thought it wise to give the 30th Respondent an opportunity to amicably resolve the issues which had led them to Courts is very commendable. The position of the law is that the Courts have an inherent duty to encourage the amicable settlement of dispute, citingCITEC INTERNATIONAL ESTATES LTD V. MINISTER OF FCT & ORS (2018) LPELR-45955 (CA).

The Respondent states that from the provision of the Federal High Court Civil Procedure Rules 2019 Order 18 Rule 1 (1), they submit that the trial Judge indeed has the power to direct parties before him to attempt an out of Court settlement before a case proceeds further. They further submit that

the argument of the Appellant that the trial Court wrongly assumed jurisdiction over the matter in making the order, is misconceived. This is because as at the date the Court made the decision directing the 2nd defendant to attempt an amicable settlement, the alleged motion on notice challenging the jurisdiction of the trial Court, which the Appellant claimed to have filed on the same date did not came up for hearing.

The 31st Respondent further argued that it is the duty of counsel to direct the Court to a pending application, and where counsel fails to so direct the attention of the Court to a pending application, he cannot be heard on Appeal to complain of not being heard, relied on ELEMCHUKWU IBATOR & ORS V. CHIEF BELI BARAKURO & ORS (2007) LPELR-1384 (SC). Also, apart from failing to voice any objection to the Court’s decision to direct an attempt at amicable settlement, despite the opportunity given by the Court, he also failed to inform the Court that he had filed a notice of Preliminary Objection challenging the jurisdiction of the Court to adjudicate over the matter, an application he claimed the Court ought to have taken cognizance

of to decline jurisdiction in the matter.

On the reference made by the Appellant to the Preliminary Objection filed on the 30th Respondent in this Appeal, and insisted that by virtue of the filing of the notice of preliminary objection by the 30th Respondent, the Court ought to have declined jurisdiction in the matter and the 31st Respondent submit that when this matter came up on the 23rd of January 2020, counsel to the 30th Respondent was present in Court for the proceedings. On the said date, the current Appellant and the 31st Respondent both argued their application to be joined as parties in the matter, the Court heard both application and made an order joining them as parties.

The 31st Respondent states that in the same way, Z. Ezika, Esq., also drew the attention of the Court to an application by Chief Odum and 19 others seeking to be joined in the suit also. However, the Court informed counsel that the Court’s attention was only drawn to his application that morning and was yet to study same referred to page 1457 to 1463 of Vol.2 of the Records. Secondly, that on the said 28th day of January 2020, when the Court exercised its discretion

in directing the 30th Respondent to attempt an amicable settlement, the said 2nd Defendant was absent and not represented by counsel. The Respondent states that the counsel cannot complain of being denied fair hearing, let alone the Appellant who was not the counsel who filed that application, neither was he holding brief for the 30th Respondent.

It is the 31st Respondent’s submission from the above that the trial Court made no error in the proceedings by directing parties to attempt settlement in the matter, and they urge this Court to hold so and resolve this issue in favour of the 31st Respondent and strike out this Appeal. He further opined that if the Appellant was ever in disagreement with the procedure adopted by the trial Court, he had a duty to oppose same and then a decision would have been arrived at by the trial Court which would have been appealable but having failed to raise any objection to the procedure adopted by the trial Court, despite being given all the opportunity to do so, he cannot be heard to complain on Appeal. He relied on ROZEN V. N.D I.C. (2007) ALL FWLLR (PT. 348) 823 AT 846.

The 31st Respondent states that it is

the law that a Court has the inherent jurisdiction to determine its own jurisdiction. There is nowhere in the whole record of proceeding transmitted to this Court where the Court had decided or made any pronouncement on the subject matter of the suit. Neither has the trial Court made a finding as to its jurisdiction to adjudicate over this matter. It is an abuse of Court process to have filed this Appeal and raised issues not determined by the trial Court.
They urge this Court to strike out this Appeal on this ground as lacking in competence and in merit.

ISSUE 2
The 31st Respondent refers this Court to page 1465 of the Record and states that it can be seen that all parties represented had ample opportunity to address the Court on the issue raised by the Court. The trial Court sought for any objection to the issue raised and there was none at all. The Appellant denied himself of the opportunity to be heard and he cannot complain of not being given an opportunity to address the Court on the issue raised by the Court, citing DARMA V. ECO BANK (2017) LPELR-41663(SC) and SOPETRO MARINE LTD V. SP BOSTON SHIPPING CORPORATION (2018) LPELR-46788(CA).

The 31st Respondent states that the law is very clear on this point and the current case is a clear example of a situation where a counsel was present in Court, refused to take advantage of the opportunity given to object to an issue raised by the Court, and only to rush to the Court of Appeal to complain of a violation of his right of fair hearing.

Further, the 31st Respondent states that counsel to the Appellant has urged this Court to invoke its powers as contained in Section 15 of the Court of Appeal Act, and exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and to determine the motion on Notice it filed on the 28th day of January, 2020. The position of the law is that, no Appeal can arise from an issue that has not been canvassed before the trial Court, and a decision reached. How then does counsel expect an Appellate Court to assume full jurisdiction over a matter that has not first been decided upon by the trial Court.

Continuing, the Respondent states that the records show that the issue of jurisdiction is yet to be properly settled at the

trial Court. The Appellant who claimed to have filed a Motion on notice on the 28th of January, 2020 has failed to inform the Court if he has duly served a copy of same on all parties in the suit and even if he has, the Respondents to the said notice Preliminary Objection never had an opportunity of responding to same before the Appellant rushed to this Appeal, citing MOLEGBEMI & ORS V. AJAYI & ORS (2011) LPELR-4501(CA).

The issue of jurisdiction having not been argued at the trial Court and a decision given only means that it remains a fresh point being raised for the first time before Court, he relied on OGBA V. ONWUZO (2005) 14 NWLR (PT. 945) 331 at 334 (SC). The 31st Respondent submits that the issue of jurisdiction is being raised for the first time before this Court, same having not been brought up and argued at the lower Court for a decision to be given on same one way or the other, to make same a competent point to be raised on Appeal. He urged the Court to discountenance the call by the Appellant to invoke the provisions of Section 15 of the Court of Appeal Act, as that would amount to the Court of Appeal placing itself as a Court of first instance.

Finally, the 31st Respondent urge this Court to find that the trial Courts order directing the 30th Respondent to attempt to settle the subject matter of the suit amicably and in house, did not in any way violate the right to fair hearing of the Appellant.

The Appellant in reply stated that he will not subscribe to the blind argument by the 31st Respondent that the Appellant denied himself opportunity to be heard. The Appellant appealed against the order made by the trial Court excluding it from being heard before the order directing only the 30th Respondent to decide his fate in the case at the trial Court. That the case of DARMA V. ECO BANK AND SOPETRO MARINE LTD V. SP BOSTON SHIPPING COR. relied upon by the 31st Respondent is not applicable to the Appeal as the tenor of the order appealed against breached the fundamental right to fair hearing guaranteed him by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.

The Appellant urge this Court to resolve issue 2 against him for lacking merit.

On the invocation of Section 15 of the Court of Appeal Act, the Appellant submit that the issue relating to

jurisdiction should be common knowledge to legal practitioners of any age at the bar. That a trial Court which makes an order suo motu assumes jurisdiction where its jurisdiction is being challenged with no opportunity for the Appellant to be heard on his motion on notice challenging jurisdiction and without being invited to address the trial Court on the order. The Appellant further submits that the 31st Respondent does not understand that the order made by the trial Court on 28/1/2020 is a decision pursuant to Section 241 and 318 (1) of the 1999 Constitution as altered.

Continuing, the Appellant submit that with a plethora of Supreme Court’s decision that no leave is required to raise an issue of jurisdiction even if it is a fresh issue, leave is not required at any level of Court to raise issue of jurisdiction. Upon the challenge of the trial Court’s jurisdiction, it ignored the preliminary objection of 30th Respondent and the motion of the Appellant challenging his jurisdiction and handed over the suit to the 30th Respondent which challenged its jurisdiction to decide the fate of the Appellant and the rest of the parties to the suit which

meant that the trial Court already assumed jurisdiction when he made the orders contained at page 1466 of Vol. 2 of the Record.

Finally, the Appellant submit that same applies to this Court even if they did not raise it at the trial Court but they did and it was ignored by the trial Court and that the Appellant has established that all the conditions for this Court to invoke its powers under Section 15 of the Court of Appeal Act are present in this Appeal and adumbrated and succinctly argued by the Appellant to which the 31st Respondent has no answer.

RESOLUTION
In determining the two issues distilled by the Appellant, it would be expedient to resolve the two issues together to avoid repetition and to set out the true picture of what led to this appeal. The trial Court rightly made an order encouraging parties to explore settlement and directed the 30th Respondent to ensure the issues in contention between the parties are resolved amicably. The Appellant contends that the order was made suo motu and without giving all parties a hearing. It is trite that all Courts have inherent and statutory jurisdiction to encourage settlement amongst parties

and that is what has snowballed into what is today known as Alternative Dispute Resolution (ADR). Even the Appellate Courts have now embraced the process as an alternative means of dispute resolution. The Court and the apex Court now ADR centers. The Federal High Court Act specifically by Section 17 provides thus:
“In any proceedings in the Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.”
Furthermore, by the rules of the same Federal High Court also by Order 18 Rule 1, the trial Judge has the power to allow time to parties to explore amicable settlement. It provides thus:
“Where a matter comes before the Court for the first time, the Judge shall in circumstances where it is appropriate, grant to the parties, time, not more than thirty days within which parties may explore possibilities for settlement of the dispute.”
In exercising its right to suggest or direct settlement, the trial Court acted within the law. None of the provisions cited above required the Court to call on parties to express any opinion whatsoever before the order for

parties to explore amicable settlement is made. The provisions quoted above also did not say that it can only be made on the application of parties. Indeed, it is a duty for the Court to encourage amicable settlement, see CITEC INTERNATIONAL ESTATES LTD V MINISTER OF FCT & ORS (2018) 45955 (CA) where ABOKI, JCA said:
“Where a matter has been filed in Court, the parties are not precluded from exploring avenues for an amicable settlement of their dispute out of Court. It is the duty of Courts to encourage parties to peacefully settle their disagreements out of Court. It is not the business of a Court to insist or compel the parties to complete their case before it, more so, where there is room for amicable settlement.”
The Appellant missed it when he challenged the powers of the trial Court to encourage settlement. It is an exception to the rule against a Court making an order suo motu. It did not in any affect the substance of the claim before it. The statutory power did not require the Court to get the consent of parties. In an amicable settlement, it will solely be what the parties agree upon and no longer the decision of the Court

which will be imposed on the parties. Here the parties determine for themselves what they want the Court to adopt as judgment. The adversarial jurisdiction of the Court is invoked only when settlement fails. Alternative dispute resolution has many advantages; it takes away the aggression in litigation and leaves parties as friends and not adversaries. The trial Court did not err in asking the 30th Respondent to see to parties exploring ways of amicable settlement, which cannot make the party a judge in his own cause because the 30th Respondent will not impose its decision but terms of settlement must be agreed upon by all the parties. To so allege is a clear misunderstanding of the dynamics of amicable dispute resolution by the Appellant.
The Appellant in response to Respondents briefs also alleged that the order was final, this again is a flawed understanding of the power of the Court below to encourage settlement. That order cannot be final of the Court, what constitutes a final order of the Court was explained in the case of UBN V BONEY MARCUS IND. LTD & ORS (2005) LPELR- 3394(SC) thus:
“A judicial decision is said to be final when it leaves

nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication… This Court, in Odutola v. Oderinde (2004) 12 NWLR (Pt.888) 574 re-stated the position of the law in this respect. The Court, per Kutigi, JSC held: “An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the Court is such that the matter would not be further brought back to the Court itself, as in this case.” See Akinsanya v. United Bank for Africa Ltd. (supra); See also Western Steel Works Ltd. v. Iron and Steel Workers Union (supra); Omonuwa v. Oshodin & Anor.(supra).”
It’s strange to contemplate that an order encouraging parties to consider an amicable settlement is a final order. What, I may ask did the Court below determined by that order as to the rights of the parties in the claim initiated by the claimants before the trial Court? The claim has not even started when the claim was at the stage of joinder of parties and the Court has not taken a step in

determining any of the applications before the trial Court. In fact, pleadings were not settled between the parties. The contention of the Appellant is preposterous and very unfortunate. The order made encouraging settlement is not a final order because it did not in any way touch on the merit of the contest between the parties and the Court below has the power to make the order without hearing parties, it was an exercise of discretion allowed by law and moreso, no party before the Court on the said 28th day of January objected or protested. The Appellant was represented by the same counsel and he did not object nor did he draw the attention of the Court to any pending objection before the Court. Appellant was joined as a party on the 23rd January, 2020 and the order was made on the 28th January, 2020. That was the same day he filed his challenge to the jurisdiction of the Court. The objection was not yet served on other parties. Appellant cannot latch on the process of another party to cry, he cannot cry more than the bereaved.
Did the making of the order breach the rights of the parties to fair hearing? Again, the rights of the parties

couldn’t have been breached because all parties were on the same level when the order was made and none complained including the Appellant. As observed above, the trial Court could encourage parties to explore settlement and report back to Court. The power is solely to be exercised at the discretion of the Court and was properly done at the onset the suit when new parties were still being joined and before pleadings were settled. Also at a stage where new parties added were not yet listed on the Originating Summons as a consequential amendment. The Originating Summons before the Court does not bear the name of the Appellant having been joined just on the 23rd January, 2020 and if all parties were yet to be named on the originating including the Appellant, how then could it be a final order that could be appealed against? How does the order affect the reliefs named on the Originating Summons? And what was the effect of the final order in terms of the rights of the parties? And which originating summons was the Appellant referring to? The original Originating Summons which must of necessity be amended pursuant to the order joining two parties with another

application still pending for joinder?

Moving on to the motion on Notice the Appellant contends should have been taken because challenges the jurisdiction of the trial Court, it was filed on the same day the order was made. The notice of motion was meant to be on notice but had not even been served on other parties, so how could it be heard same day when other parties had not seen it? Probably, learned counsel forgot it was not exparte but on notice. Being on notice it must be served on all parties before the trial Court. Could the trial Court have determined the motion when other parties were not served? Would that offend fair hearing principles? Even if the motion was served same day it was filed, the Respondents have 7 days in line with the Rules of the Federal High Court, to reply to it, this means that the said Motion on Notice as at 28th January, 2020 was not ripe for hearing according to the rules of the trial Court, Order 26 Rule 4 states that:
“a party of whom a motion has been served in accordance with the rules of this order and who intends to reply, may do so by filing his counter affidavit along with a written address not letter

than 7 days from the date of service of it.”
The Appellant’s proposition is certainly strange, unknown to law and a call for commotion in the administration of justice. The beauty of judicial proceedings is it observance and adherence to rules of procedure, see OFORKIRE & ANOR V MADUIKE & ORS (2003) LPELR-2269(SC) which held thus:
“It is elementary law that rules of Court must be obeyed or complied with, as they are not made for fun. In Solanke v. Somefun (1974) 1 SC 141, Sowemimo, JSC (as he then was) opined: “Rules of Court are meant to be complied with…. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that make for quicker administration of justice.” See also Ibodo v. Enarofia (1980) 5-7 SC 42; Ania v. Obabiolorun-Kosi (1986) 2 NWLR (Pt. 22) 316; Olusesi v. Oyelusi (1986) 3 NWLR (Pt. 31) 634; John v. Blakk (1988) 1 NWLR (Pt. 72) 648; Government of Imo State v. Greeco Construction and Engineering Associates Ltd. (1985) 3 NWLR (Pt. 11) 71; Dambam v. Lele (2000) 11 NWLR (Pt. 678) 413.” Per TOBI, J.S.C

The Appellant cannot expect that an objection filed must be considered same day in disregard for rules that other parties be served and given opportunity to react. That will certainly breach rules of fair hearing and occasion a miscarriage of justice. Instead of waiting to raise his objection properly, he ran to the Court of Appeal creating unnecessary tension in the guise that the trial Court made a final order suo motu when it had no jurisdiction. If the contention is right, then even the order joining the Appellant was also without jurisdiction and therefore this appeal is also incompetent.
The fact that jurisdiction is challenged does not mean that the Court’s procedural rules should be jettisoned. The position canvassed by the Appellant is strange and curious. Appellant could cite any authority to support the bizarre proposition. In an effort to put forward his case, he omitted some essential facts and twisted some, probable to mislead the Court, that is unfortunate. Appellant did tell the Court that the motion was not yet served on the Respondents and that it was filed same day the order appealed against was made.

Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO,J.S.C.
Jurisdiction can be raised at any time and even at the Appeal stage of proceedings and even at that, parties who are Respondents to the process challenging jurisdiction must be duly served and given an opportunity to react before the Court rules on the challenge. It beats my imagination that a counsel will be so aggrieved with a judge for encouraging parties to attempt settlement and for also not taking his motion challenging jurisdiction when the motion has not even been served, a motion on notice that was filed same day. Even if the motion were an ex parte motion, the judge is not under any compulsion to take it same day, he has discretion in determining when to take the motion. There is no statutory provision placing such responsibility on the Court. The importance of jurisdiction cannot over ride rules on service and when or how a motion on notice should be processed and determined. I totally disagree with the Appellant who is under a misapprehension or misconception of the law, therefore devoid of

merit, a delusion. The motion filed by the Appellant was not ripe for hearing and other parties must be served before the preliminary objection can be taken and determined, this is regardless of the nature of the objection.

The trial judge did not err and no miscarriage of justice was occasioned by the order made urging parties to explore settlement and the failure to take the unripe objection. Furthermore, as observed by counsel to the 1st-28th Respondents, the Appellant’s name was not yet on the Originating Summons having just been joined. The Court owes the parties before the Court a duty and not to non parties. The two issues donated by the Appellant are hereby resolved against the Appellant.

Next issue for consideration is the application that the Court invokes its Section 15 jurisdiction to determine the objection filed on the 28th January, 2020. The Preliminary Objection was not served on the Respondents before the Court. The Appellant rushed to the Court when issues are yet to be joined on the preliminary objection. The power bestowed on the Court by Section 15 is wide but circumscribed by conditions that must exist before the Court can

exercise the power. It provides thusly:
“The Court of Appeal may from time to time make any order necessary to determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its …in any question which the Court of Appeal thinks fit to determine before trial Judgment in the appeal, and may make an interim action or grant any injunction which the Court below is authorized to make or grant and may direct as necessary inquiry or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceeding as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the passage of such re-hearing or may give such other directives as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in the Court’s appellate jurisdiction, and the case to be re-heard by the Court of competent jurisdiction.”

This wordy and all embracing provision is not without limitation. The Court of Appeal cannot have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of appeal as a Court of first instance unless all the conditions listed in a plethora of cases exist.
Conditions that must exist before the Court can invoke and exercise its powers in this section have been set out, seeEZEIGWE V NWAWULU & ORS (2010) LPELR-1201(SC) wherein it held as follows:
“In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply, the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary

materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” Per ONNOGHEN, J.S.C
Without waste of precious time of this Court, the motion on Notice that the Appellant seeks this Court to invoke its powers under Section 15 to determine same was not served on the respondents and therefore not ripe for hearing even before the trial Court so the third condition which requires that all materials must be available to the Court for consideration is absent. No service on the respondents and therefore they are not to react. To consider it would obviously breach the right of Respondents to fair hearing before this Court. The Court cannot attempt that under any guise or invitation by the Appellant.
The Appellant’s response to the Respondents objection to such absurd procedure contended that jurisdiction can be raised at any time and even on appeal. Trite as that statement is, when a

challenge to jurisdiction is raised on appeal, parties such as Respondents are given the opportunity to react before the Court can consider it. It is never determined behind other parties. It is obvious that the Appellant did not raise it as a fresh challenge to jurisdiction in this Court. He merely wanted the Court to invoke its Section 15 jurisdiction to determine the objection filed on the 28th January, 2020 which is pending before the trial Court and still not served on the Respondents. In view of above, the call on this Court to invoke Section 15 and determine the objection cannot be granted. The conditions precedent are nonexistent and lacking, therefore the Court cannot invoke its powers under Section 15.

On the whole therefore, the appeal is unmeritorious, lacks merit, frivolous and deserves to be dismissed. The Appeal is hereby dismissed with cost assessed at N250,000.00 to the set of the 1st – 28th Respondents; 30th Respondent and 31st Respondent respectively.

PETER OLABISI IGE, J.C.A.: I have read the lead judgment delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA in APPEAL NO. CA/A/101/2020.
I agree with the reasoning and conclusion therein.

MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by learned brother, YARGATA BYENCHIT NIMPAR, JCA and I agree with the reasoning contained therein and the conclusion arrived there at.

My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal lacks merit and is hereby dismissed.
I abide by the other orders made therein the lead Judgment.

Appearances:

…For Appellant(s)

…For Respondent(s)