APC & ANOR v. GBADAMOSI & ANOR
(2022)LCN/16236(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, July 20, 2022
CA/ABJ/CV/505/2022
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. ALL PROGRESSIVES CONGRESS 2. HON. ISAAC AJIBOYE OMODEWU APPELANT(S)
And
1. ALHAJI ABU ADEJARE GBADAMOSI 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE CONSTITUTIONAL RIGHT TO APPEAL FROM THE DECISION OF THE FEDERAL HIGH COURT OR A STATE HIGH COURT TO THE COURT OF APPEAL
The right of appeal is constitutional. Sections 241, 242 and 243 of the 1999 Constitution, as amended, provide as follows:
“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, 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.
(2) Nothing in this section shall confer any right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
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 of Appeal
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
243. (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental right as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) Without prejudice to the provisions of Section 254C(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.”
By the combined effect of Sections 241, 242 and 243 of the 1999 Constitution (as amended), the right of appeal is exercisable by a person aggrieved with the decision of the Court and it is exercisable within the confines of the provisions creating the right of appeal. See MOSES vs. OGUNLABI (1975) LPELR (1914) 1 at 5, ONIGBEDEN vs. BALOGUN (1975) LPELR (2682) 1 at 6 and METUH vs. FRN (2018) LPELR (43706) 1 at 14-15. PER OGAKWU, J.C.A.
THE CONDITION TO BE SATISFIED FOR A PARTY TO EXERCISE THE RIGHT OF APPEAL
For a party or person to exercise the right of appeal, he must show that he is aggrieved by the decision; a person aggrieved by a decision is a person against who a decision has been pronounced which has wrongfully deprived him of something, or who is adversely affected by the decision in the sense that the decision wrongfully refused him something, or wrongfully affected his title to something. See OGUNKUNLE vs. ETERNAL ORDER OF THE CHERUBIM AND SERAPHIM (2001) 12 NWLR (PT 727) 359, ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (2006) 10 NWLR (PT 987) 50 and ELEPHANT GROUP PLC vs. NATIONAL SECURITY ADVISER (2018) LPELR (45528) 1 at 102-103 (per Georgewill, JCA). PER OGAKWU, J.C.A.
THE DEFINITION AND PURPOSE OF A NOTICE OF APPEAL
The Notice of Appeal is the originating process that initiates an appeal. It is the nucleus, substratum, bedrock, foundation and spinal cord of every appeal. Where a Notice of Appeal is incompetent, as in this instance, it snuffs the life out of the appeal and impinges on the jurisdiction of the appellate Court to entertain the appeal. See IKWEKI vs. EBELE (2005) 11 NWLR (PT 936) 397, ADERIBIGBE vs. ABIDOYE (2009) 10 NWLR (PT 1150) 592 at 614-615 and SPDCN vs. SAM ROYAL HOTEL (NIG) LTD (2016) 8 NWLR (PT 1514) 318 at 332. A Court is competent to adjudicate, inter alia, when the matter has been initiated by due process of law and there is no feature in the case which prevents the Court from exercising jurisdiction. See MADUKOLU vs. NKEMDILIM (1962) ALL NLR 581 at 589-590. The incompetent Notice of Appeal has not activated the jurisdiction of this Court, it is a feature that erodes the jurisdictional competence of the Court to entertain the appeal. The appeal has therefore not been initiated by due process of law and upon the fulfilment of the condition precedent to the exercise of jurisdiction by the Court over the appeal. Where a Court does not have jurisdiction in a matter, it is a waste of time to embark on the hearing and determination of the matter on the merits. See A-G Lagos State vs. DOSUNMU (1989) LPELR (3154) 1 at 10 and UNION BANK vs. BEAR MARINE LTD (2018) LPELR (43692) 1 at 24. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
“If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim … There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.” PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the contest for the Chairmanship of the Oyo State Chapter of the All Progressives Congress, the 1st Appellant on record. The 1st Respondent herein, contending that the 1st Appellant’s Convention Planning Committee, without conducting the party’s State Congress for Oyo State to elect the State Party Chairman, invited the 2nd Appellant to Abuja and issued him a Certificate of Return as the 1st Appellant’s Oyo State Chapter Chairman. Consequent upon this, the 1st Respondent, an aspirant for the said position of Chairman instituted proceedings by Originating Summons before the Federal High Court Abuja Division in SUIT NO. FHC/ABJ/CS/147/2022: ALHAJJI ABU ADEJARE GBADAMOSI vs. ALL PROGRESSIVE CONGRESS & ORS.
The following questions were presented for determination in the said Originating Summons:
“1. Whether the issuance of All Progressive Congress State Congress Election Certificate of Return dated 3rd day of February, 2022 by the 1st Defendant’s Convention Planning Committee to the 3rd Defendant at the 1st Defendant’s National Secretariat, Wuse 2, Abuja, FCT on 3rd February, 2022 in the absence of a democratically conducted election by the APC Oyo State Congress, electing the 3rd Defendant into the position does not violate the 1st Defendant’s Constitution and consequently null, void and liable to be set aside.
2. Whether it does not amount to violation of the 1st Defendant’s Constitution for the 1st and 2nd Defendants to recognize the 3rd Defendant as the Party Chairman of Oyo State in the absence of a democratically conducted election by the Oyo State APC Congress electing the 3rd Defendant as such.
3. Whether the 1st Defendant is not under obligation to uphold its Constitution, prevent discontent and crisis, promote and uphold the practice of internal democracy at all levels of the Party’s Organization and conduct its affairs equitably and fairly without discrimination amongst its members.”
Upon the determination of the said questions, the following reliefs were claimed:
“i. A DECLARATION THAT the issuance of All Progressive Congress Election Certificate of Return dated 3rd day of February, 2022 by the 1st Defendant’s Convention Planning Committee to the 3rd Defendant at the 1st Defendant’s National Secretariat, Wuse 2, Abuja, FCT on 3rd February, 2022 in the absence of a democratically conducted election by the APC Oyo State Congress, electing the 3rd Defendant into the position violates the 1st Defendant’s Constitution and consequently null, void and liable to be set aside.
ii. A DECLARATION THAT it amounts to violation of the 1st Defendant’s Constitution for the 1st and 2nd Defendants to recognize the 3rd Defendant as the Party Chairman of Oyo State in the absence of a democratically conducted election by the Oyo State APC Congress, electing the 3rd Defendant as such.
iii. A DECLARATION THAT the 1st Defendant is under obligation to uphold its Constitution, promote and uphold the practice of internal democracy at all levels of the Party’s Organization and conduct its affairs equitable [sic] and fairly without discrimination amongst its members.
iv. AN ORDER OF COURT setting aside the All Progressive Congress State Congress Election Certificate of Return dated 3rd day of February, 2022 issued by the 1st Defendant’s Convention Planning Committee to the 3rd Defendant at the 1st Defendant’s National Secretariat, Wuse 2, Abuja, FCT on 3rd February, 2022.
v. AN ORDER OF INJUNCTION restraining the 3rd Defendant from parading himself or holding himself forth as the All Progressive Congress (APC) Party Chairman of Oyo State.”
Upon being served with the originating processes, the 1st Appellant herein, which was the 1st Defendant at the lower Court, filed a motion on notice challenging the competence of the action and prayed for the following reliefs:
“i. AN ORDER of this Honourable Court striking out the suit in limine for being incompetent.
OR IN ALTERNATIVE
ii. AN ORDER of this Honourable Court declining territorial jurisdiction to entertain this suit and transferring same from the Abuja Judicial Division of this Honourable Court to the Oyo State Judicial Division of this Honourable Court where the 3rd Defendant/Respondent is resident and where the 3rd Defendant/Respondent was elected as the party Chairman of Oyo State.”
The grounds upon which the application is predicated are as follows:
“a. The rules of this Honourable Court stipulate that an action of this nature shall be commenced and determined in the Judicial Division in which the Defendant resides or carries on substantial part of its business.
b. The 3rd Defendant/Respondent is the elected party Chairman of Oyo State; outside the territorial jurisdiction of this Honourable Court.
c. The 3rd Defendant/Respondent who is the principal party in this suit is elected as the party Chairman of Oyo State.
d. The 1st and 2nd Defendants are desirable parties in this suit.
e. In view of the above, the Abuja Judicial Division of this Honourable Court lacks the territorial jurisdiction to entertain this suit and/or grant the Reliefs sought therein, in that it is not the proper and/or convenient forum.
f. That the institution of this suit in Abuja Judicial Division of this Honourable Court amounts to forum shopping.
g. This Honourable Court has the powers to strike out this matter, or pursuant to Section 22 of the Federal High Court Act, and Order 2 Rule 1(3) of the Federal High Court (Civil Procedure) Rules, 2019, to cause this suit to be transferred to the Oyo State Judicial Division of this Honourable Court.
h. This Honourable Court has the powers to grant this Application.
i. It will serve the interest of justice to grant this Application, as prayed.”
It is limpid from the above that the 1st Appellant’s challenge to the competence of the action is based on the territorial jurisdiction of the lower Court to entertain the action without more.
The 2nd Respondent herein, which was the 2nd Defendant at the lower Court could equally not see its way clear on the jurisdiction of the lower Court to entertain the Originating Summons filed by the 1st Respondent herein, as Plaintiff before the lower Court. It therefore filed a preliminary objection wherein it contended that the subject matter of the suit was not within the jurisdiction of the lower Court. The issue distilled for determination in the written address in support of the said 2nd Respondent’s preliminary objection is: “whether in view of the facts of this case as constituted which is clearly a domestic affair of Political Parties vis a vis the provisions of the relevant laws, this case is justiciable such that this Honourable Court has jurisdiction to hear and determine this suit?” It is translucent that the preliminary objection of the 2nd Respondent is anchored on the subject matter being in respect of the domestic or internal affair of a political party which was not justiciable. The 1st Appellant herein was a respondent to the 2nd Respondent’s preliminary objection; it did not itself raise any objection to the justiciability of the subject matter; but rather challenged the territorial jurisdiction of the lower Court to entertain the action in Abuja. The 2nd Appellant herein, who was the 3rd Defendant at the lower Court did not challenge the competence of the action at the lower Court in any way or manner, and was indeed a respondent in both the 1st Appellant’s motion on notice as well as the 2nd Respondent’s preliminary objection.
The lower Court after hearing the motion on notice and preliminary objection delivered two separate rulings on 26th April, 2022 dismissing both applications. The implication of the ruling dismissing the 1st Appellant’s motion on notice is that it is a decision in favour of the respondents to the said motion. In the same vein, the ruling dismissing the 2nd Respondent’s preliminary objection is equally a decision in favour of the respondents to the said preliminary objection, which includes the Appellants herein. The ruling of the lower Court on the 1st Appellant’s motion on notice is at pages 78-90 of the Records. There was no appeal against the said ruling. The ruling of the lower Court on the 2nd Respondent’s Preliminary Objection is at pages 103-120 of the records. The 2nd Respondent did not appeal against the said ruling.
By Notice of Appeal filed on 6th May, 2022, the Appellants herein, being the respondents in the 2nd Respondent’s Preliminary Objection and in whose favour the ruling of the lower Court dismissing the preliminary objection enures, appealed against the said decision on the preliminary objection. The Notice of Appeal is at pages 121-124 of the Records.
Upon the compilation and transmission of the Records of Appeal, briefs of argument were filed and exchanged between the Appellants and the 1st Respondent only. The 2nd Respondent did not file any processes in respect of the appeal. The 1st Respondent further filed a Notice of Preliminary Objection challenging the competence of the appeal, which preliminary objection was argued in his brief of argument. The processes on which the appeal was argued are:
1. Appellants’ Brief of Argument filed on 7th June, 2022
2. 1st Respondents’ Notice of Preliminary Objection filed on 14th June, 2022
3. 1st Respondents’ Brief of Argument filed on 14th June, 2022
4. Appellants’ reply to the Notice of Preliminary Objection of the 1st Respondent filed on 16th June, 2022.
At the hearing of the appeal, the learned counsel for the Appellants and the 1st Respondent relied on their processes and urged the Court to uphold their respective submissions in the determination of the appeal.
Conventional wisdom dictates that I begin the consideration of the submissions of learned counsel with the 1st Respondent’s Preliminary Objection, as it seeks to scuttle the hearing of the appeal in limine.
THE PRELIMINARY OBJECTION
The preliminary objection is predicated on the following grounds:
“i. The Appellant’s sole ground of appeal with particulars thereto does not emanate from the decision of the lower Court purportedly appealed. It does not also challenge any ratio decidendi of the decision of the lower Court. The appeal is therefore incompetent and the Court of appeal lacks jurisdiction to entertain it.
ii. The 2nd Appellant never filed any objection at the lower Court. He was a Respondent to the 1st Appellant’s Motion on Notice. So, the decision of the lower Court dismissing the motion to which the 2nd Appellant was a Respondent was a decision in favour of the 2nd Appellant. The 2nd Appellant lacks the locus to purport to appeal the decision.”
SUBMISSIONS OF LEARNED COUNSEL
The 1st Respondent submits that there is no single allegation in the 1st Appellant’s Motion on Notice that the 1st Respondent’s Originating Summons bordered on the domestic or internal affairs of a political party and as such the lower Court never determined the same in the 1st Appellant’s motion on notice. It was consequently opined that the Appellants’ sole ground of appeal did not emanate from the decision of the lower Court on its motion on notice, as a result of which the appeal is incompetent since the ground of appeal and the issue formulated therefrom are not a challenge to the decision on the motion on notice. The cases of OLEKSANDR vs. LONESTAR DRILLING CO LTD (2015) 9 NWLR (PT 1464) 337 at 361, MAIGANA vs. ITF (2021) 8 NWLR (PT 1777) 1 at 22, GAMBARI vs. ILORI (2002) 14 NWLR (PT 786) 95, AMADI vs. WOPARA (2022) 1 NWLR (PT 1811) 359 at 271 [sic] among other cases were relied upon.
It is the further submission of the 1st Respondent that the 2nd Appellant did not file any objection at the lower Court and that this being so, the decision of the lower Court on the 1st Appellant’s motion was a decision in his favour and he therefore lacks the locus to appeal against a decision that is in his favour, merely because he is a party to the suit. The cases of MOBIL PROD. (NIG) UNLTD vs. MONOKPO (2003) 18 NWLR (PT 852) 346 at 399 and ADEKEYE vs. ADESINA (2010) 18 NWLR (PT. 1225) 449 at 469 were referred to.
In replication, the Appellants submit that the ruling which spawned the appeal borders on jurisdiction which is threshold in nature and can be raised at anytime, even for the first time on appeal or even by the Court suo motu vide WAZIRI UMARU FEDERAL POLYTECHNIC BIRNIN KEBBI vs. BALA (2017) LPELR 42505 CA and GREIF (V. L.) CONTAINERS PLC vs. O. P. IND LTD (2015) 8 NWLR (PT 1461) 260 at 276. It was opined that the ground of appeal emanated from the ruling of the lower Court in respect of the 2nd Respondent’s preliminary objection.
It was posited that the Appellants’ ground of appeal clearly shows the Appellants’ grievance with the decision of the lower Court. The case of MOBIL PROD. (NIG) UNLTD vs. MONOKPO (supra) was called in aid. It was maintained that every party to a suit has a right to appeal against a decision that affects or touches the interest of any party to the suit; and that any party is allowed to appeal against any aspect of the decision of the Court it finds unconscionable or that it is not satisfied with. The case of MIL. GOV. ONDO STATE vs. AJAYI (1998) 3 NWLR (PT 540) 27 at 48 and OKELUE vs. MEDUKAM (2011) 2 NWLR (PT 1230) 176 at 195 were cited in support. It was stated that no ground of appeal should be declared incompetent unless the ground is vague and does not arise from the decision of the Court below. Order 7 Rule 3 of the Court of Appeal Rules, 2021 and the case of SOSANYA vs. ONADEKO (2005) 6 MJSC 88 at 108 were referred to. It was conclusively submitted that where there are two or more appellants, an appeal will be competent if one or more of them has or have the competence to appeal vide MOBIL PROD. (NIG) UNLTD vs. MONOKPO (supra) at 422-423.
RESOLUTION
I have already set out the salient background facts of this matter. The disceptation in the preliminary objection falls within a very narrow compass. It has even been further streamlined by the submission in paragraph 2.3 of the Appellants’ Reply to the Preliminary Objection. This is what the Appellants stated:
“2.3 We submit respectfully that the Court below delivered two rulings on the Appellants and 2nd Respondent’s Applications on 26th April, 2022 raising objections bordering on the issue of jurisdiction of the Court below. However, the ground of appeal before this Honourable Court emanated from the ruling of the Court in respect of the 2nd Respondent’s Notice of Preliminary Objection delivered on 26th April, 2022.”
Without a doubt, if the decision appealed against is the ruling on the 1st Appellant’s Motion on Notice, then the 1st Respondent would have been on strong wicket in his contention that the sole ground of appeal does not arise from the said decision. But, as has been clarified by the Appellants, the appeal is against the decision in the 2nd Respondents’ preliminary objection. So, the Appellants did not appeal against the decision of the lower Court on the 1st Appellant’s Motion on Notice. The Appellants, who were respondents to the 2nd Respondent’s preliminary objection, by virtue of which the ruling dismissing the preliminary objection was in their favour; have appealed against the said decision. The critical question in the diacritical circumstances of this matter is whether the Appellants’ can appeal against a decision that is in their favour, a decision that does not adversely affect them, id est, the decision dismissing the 2nd Respondents Preliminary Objection.
The right of appeal is constitutional. Sections 241, 242 and 243 of the 1999 Constitution, as amended, provide as follows:
“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, 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.
(2) Nothing in this section shall confer any right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
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 of Appeal
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
243. (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental right as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) Without prejudice to the provisions of Section 254C(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.”
By the combined effect of Sections 241, 242 and 243 of the 1999 Constitution (as amended), the right of appeal is exercisable by a person aggrieved with the decision of the Court and it is exercisable within the confines of the provisions creating the right of appeal. See MOSES vs. OGUNLABI (1975) LPELR (1914) 1 at 5, ONIGBEDEN vs. BALOGUN (1975) LPELR (2682) 1 at 6 and METUH vs. FRN (2018) LPELR (43706) 1 at 14-15. These confines include that the right of appeal can only be exercisable by a party to the proceedings or any other person having an interest in the subject matter. For a party or person to exercise the right of appeal, he must show that he is aggrieved by the decision; a person aggrieved by a decision is a person against who a decision has been pronounced which has wrongfully deprived him of something, or who is adversely affected by the decision in the sense that the decision wrongfully refused him something, or wrongfully affected his title to something. See OGUNKUNLE vs. ETERNAL ORDER OF THE CHERUBIM AND SERAPHIM (2001) 12 NWLR (PT 727) 359, ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (2006) 10 NWLR (PT 987) 50 and ELEPHANT GROUP PLC vs. NATIONAL SECURITY ADVISER (2018) LPELR (45528) 1 at 102-103 (per Georgewill, JCA). So, while it is correct that a party to a suit has a right of appeal against the decision reached, the right is exercisable where the party is aggrieved by the decision in the sense that he is adversely affected and wrongfully refused of something or his title to something wrongfully affected as a result of the decision.
The corollary of this legal position is that a person, whether a party or an interested person has no right of appeal and cannot appeal against a decision which has not affected him. In MOBIL PRODUCING (NIG) UNLTD vs. MONOKPO (supra) at 399, Uwaifo, JSC quipped:
“A party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party.”
See also AKINBIYI vs. ADEDIBU (1956) SCNLR 109, CPC vs. NYAKO (2011) 17 NWLR (PT. 1277) 451 at 481 and OKOYE vs. TOBECHUKWU (2016) LPELR (41508) 1 at 9-13.
At the risk of prolixity, let me rehash the salient facts of this matter to ascertain if the Appellants could pass for party aggrieved by the decision which they have appealed against. Now, the 1st Appellant’s objection to the jurisdiction of the lower Court to adjudicate was on the basis of want of territorial jurisdiction. The 2nd Appellant did not raise any objection at all. The lower Court dismissed the 1st Appellant’s motion on notice in which it challenged the territorial jurisdiction. The 1st Appellant was sated with the decision and did not appeal against the same. On the other hand, the 2nd Respondent by its preliminary objection challenged the jurisdiction of the lower Court on the grounds that the subject matter of the action was based on the internal or domestic affair of a political party and therefore not justiciable. The 1st Appellant, the political party in question, neither raised nor supported this ground of objection by the 2nd Respondent at the lower Court. By this conduct, the 1st Appellant’s position was that the subject matter was justiciable as it was not the domestic or internal affair of a political party. The lower Court dismissed the 2nd Respondent’s Preliminary Objection, thereby affirming that the subject matter of the action was justiciable and not merely the domestic or internal affair of a political party. The 2nd Respondent did not appeal against the dismissal of its preliminary objection. The Appellants have however appealed against the decision of the lower Court dismissing the 2nd Respondents’ Preliminary Objection, which decision, from the above factual analysis was in their favour.
On the settled facts of this matter, I am unable to fathom how the Appellants can be aggrieved by the decision which they have appealed against. I fail to see how they have been adversely affected by the decision, how the decision has wrongfully refused them of something or how they have been wrongfully affected by the decision. The Appellants do not come within the purview of the combined provisions of Sections 241, 242 and 243 of the 1999 Constitution, as amended. The 2nd Respondent whose preliminary objection was dismissed and ought to be aggrieved as a result did not appeal.
The Appellants by bringing this appeal when they clearly have no right of appeal are merely weeping more than the bereaved and trying to be more royal than the King. Fortunately, the wisdom of the law does not accommodate such shenanigan. The Appellants, on the diacritical facts and circumstances of this matter do not fall within the purview of parties that can exercise the constitutional right of appeal against the decision appealed against. See OGUNKUNLE vs. ETERNAL ORDER OF THE CHERUBIM AND SERAPHIM (supra), MOBIL PROD (NIG) UNLTD vs. MONOKPO (supra), ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (supra), OKOYE vs. TOBECHUKWU (supra) and ELEPHANT GROUP PLC vs. NATIONAL SECURITY ADVISER (supra). In consequence, the Appellants, not being party aggrieved by the decision they have appealed against, have no right of appeal and their Notice of Appeal is incompetent.
Let me make myself clear in order to ensure that I have not stated the legal position in an unbridled manner. The legal position I have expounded above is not to be misunderstood to mean that a party cannot appeal against the decision reached in an application made by another party which adversely affects him. No. In ELUGBE vs. OMOKHAFE (2004) 18 NWLR (PT 905) 319 at 337-338, Oguntade, JSC stated:
“… the objection by the 1st-3rd respondents that the appellant could not base his appeal on the objection raised by the 4th-6th respondents which the appellant had not raised himself at the Court of Appeal was misconceived.”
The reasoning of the learned jurist reproduced above is based on having found that the decision on the objection by the 1st-3rd respondents in the matter adversely affected the 4th-6th respondents therein; in consequence of which they possessed the right to appeal against the decision. Au contraire, as I have demonstrated above the decision on the 2nd Respondent’s preliminary objection which the Appellants appealed against did not adversely affect the Appellants.
The Notice of Appeal is the originating process that initiates an appeal. It is the nucleus, substratum, bedrock, foundation and spinal cord of every appeal. Where a Notice of Appeal is incompetent, as in this instance, it snuffs the life out of the appeal and impinges on the jurisdiction of the appellate Court to entertain the appeal. See IKWEKI vs. EBELE (2005) 11 NWLR (PT 936) 397, ADERIBIGBE vs. ABIDOYE (2009) 10 NWLR (PT 1150) 592 at 614-615 and SPDCN vs. SAM ROYAL HOTEL (NIG) LTD (2016) 8 NWLR (PT 1514) 318 at 332. A Court is competent to adjudicate, inter alia, when the matter has been initiated by due process of law and there is no feature in the case which prevents the Court from exercising jurisdiction. See MADUKOLU vs. NKEMDILIM (1962) ALL NLR 581 at 589-590. The incompetent Notice of Appeal has not activated the jurisdiction of this Court, it is a feature that erodes the jurisdictional competence of the Court to entertain the appeal. The appeal has therefore not been initiated by due process of law and upon the fulfilment of the condition precedent to the exercise of jurisdiction by the Court over the appeal. Where a Court does not have jurisdiction in a matter, it is a waste of time to embark on the hearing and determination of the matter on the merits. See A-G Lagos State vs. DOSUNMU (1989) LPELR (3154) 1 at 10 and UNION BANK vs. BEAR MARINE LTD (2018) LPELR (43692) 1 at 24. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
“If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim … There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.”
The aim and essence of a preliminary objection is to remove and nip in the bud, without dissipating energy in resolving the substantive matter, actions which are incompetent and defective. Put differently, it forecloses the hearing of the matter on the merits. See YARO vs. AREWA CONSTRUCTION LTD (2007) 6 SCNJ 418, EFET vs. INEC (2011) LPELR (8109) 1 at 18 and 33, BANK OF INDUSTRY LTD vs. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR (43812) 1 at 7-8 and APC vs. UMAR (2019) LPELR (47296) 1 at 17-19. Having held that the Notice of Appeal is incompetent, it marks the Nunc Dimittis for this appeal. There is no need to consider the merits of the appeal as the Court does not have the jurisdictional competence to do so. Accordingly, since the Notice of Appeal is incompetent; the appeal is hereby struck out. The parties shall bear their respective costs of this appeal.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I am entirely in agreement with the reasoning and conclusion reached therein that the appeal be struck out for being incompetent.
I abide by the consequential orders.
BATURE ISAH GAFAI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Ogakwu, JCA. I endorse its entirety; both in the lucid reasonings expressed therein and the inevitable conclusion that this Court lacks jurisdiction to entertain this appeal. The Appellants can neither be regarded as “aggrieved” persons within the contemplation of the Sections 241 – 243 of the Constitution nor provided any recognisable right of appeal in their Notice of Appeal. They are simply, as described in the leading judgment, crying more than the bereaved.
In consequence, and for the fuller reasons expressed in the leading judgment, I too strike out the appeal owing to its incompetence which thereby settled law robs this Court of jurisdiction to entertain it.
Appearances:
Ms. Titilayo Precious Soje, with him, S. A. Adebayo, Esq. For Appellant(s)
J. C. Njikonye, Esq. SAN, with him, Isaac Ita, Esq. and Ms. Geraldine C. Edward – for 1st Respondent
Mrs. Esther T. Agbaje – for 2nd Respondent For Respondent(s)