ATIDADE v. OJO & ORS
(2022)LCN/16285(CA)
In the Court of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, June 22, 2022
CA/AK/53/2022
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
HON. SUNDAY AKANFE ATIDADE APPELANT(S)
And
1. HON. WALE OJO 2. MR. SOJI LONGE 3. FEMI AJIBOYE 4. ALHAJI REMI AROGUNDADE 5. PEOPLES DEMOCRATIC PARTY 6. HON. SUNDAY BISI 7. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
THE RIGHT OF AN AGGRIEVED PERSON TO APPEAL AGAINST THE DECISION OF THE HIGH COURT
The right of an aggrieved person to appeal against the decision of the High Court to this Court is constitutionally guaranteed Section 241 of the 1999 Constitution of FRN has made robust provisions in respect of the right to appeal. In practice, an appeal can either be against, a final or interlocutory decisions of the lower Court. In this particular instance, we are dealing with an interlocutory appeal against the decision of the High Court of Osun State to subsume and hear together a Preliminary Objection on its jurisdiction with the main suit on the basis of which this appeal came up, at an interlocutory stage for which the 1st–4th Respondents are contending that leave is necessary before the appeal become competent in the circumstance.
The Supreme Court and infact this Court have had numerous occasions to pronounce on instance like this one of which was in the case of Mohammed V. Olawunmi (1990) LPELR-1893 SC where it was held as follows:
“Being an interlocutory appeal the time for filing the same is severely reduced and limited to 14 days if there is an appeal within the 14 days and the ground of appeal involves question of law alone, the appeal is competent as the constitution enables an appellant to appeal as of right in such circumstances. See Section 220(1) “… Of the 1979 Constitution” NOTE Section 220(1) 1979 Constitution is the same as 241 (1) of 1999 Constitution
This Court per Akomolafe Wilson JCA in Hassan V. FRN & Ors (2018) LPELR-44574 (CA) held:-
“It is observed that the objection of the 1st Respondent is actually predicated on the fact that this appeal arose from an interlocutory decision. The mere fact that an appeal is against an interlocutory decision does not necessarily mean that the leave of Court must be obtained. It is the nature of the appeal that will determine that the leave of the Court is required pursuant to Section 241(2) of the Constitution.
It is only when the grounds of appeal are based on facts or mixed law and facts that the leave of the lower Court must be sought and obtained before such interlocutory appeal can be competent. Where the interlocutory appeal is based simply on grounds of law, the Appellant can appeal as of right to the Court of Appeal.” PER BASHIR, J.C.A.
THE POSITION OF LAW ON THE GENERAL POWER OF THE COURT OF APPEAL
It is trite law that the general power of the Court of Appeal under Section 15 of the Court of Appeal Act (2004) is unfettered and far reaching. However, it is equally trite that the exercise of the power under the said Section 15 is not merely as a matter of course it is necessary to exercise the powers judicially and judiciously. See F. R. N. V. Daniel (2011) LPELR–4152 (CA). This Court shall therefore restrain itself from pronouncing on the pending issue. PER BASHIR, J.C.A.
THE POSITION OF LAW IS THAT A JUDGE OF A COURT IS THE MASTER OF THE PROCEEDINGS OF HIS OWN COURT
The general position of the law is that every Judge is the master of his own Court he has the right and the power to determine how matters proceed in his Court, in so doing the Judge is entitled to make orders and give such directives as will aid the effective and timeous determination of disputes before the Court without compromising the need to do substantial justice. See Executive Governor, Osun State V. Barrister N. O. Folorunsho (2014) LPELR 23088 (CA).
Where this Court held per Denton West “A Court (Nay Judge) is under a statutory duty to assert its control over proceedings before it” See also Onnoghen V. FRN (2019) LPELR 44689 (CA) Addah JCA:
“A Judge of a Court or Tribunal is the master of the proceedings he is in charge of how and when the matters before him are heard that is all within his Prerogative” PER BASHIR, J.C.A.
THE POSITION OF LAW ON HEARING A PRELIMINARY OBJECTION CHALLANGING THE JURISDICTION OF COURT
Preliminary Objection challenging the jurisdiction of the Court is heard along with the main action under an Originating Summons proceeding, the first duty of the Court is to determine its own jurisdiction that is whether the Court is competent to hear and determine the suit on its merit or not, depending on how the decision on the question of jurisdiction is resolved, the matter either goes on or is struck out in limine. See Olorunkunle and Anor V. Adigun & Ors (2012) LPELR 8024 (CA), Gbadebo & Anor V. Oyenitun & Or. (2021) LPELR 52928 (CA). PER BASHIR, J.C.A.
WHETHER OR NOT GROUNDS OF APPEAL MUST ORIGINATE FROM THE JUDGEMENT OR DECISION OF COURT APPEALED AGAINST
Now, it is an elementary rule of the appellate Court practice that grounds of appeal must arise and emanate from the terms of the judgment of the lower Court and must be directed at or be related to the ratio decidendi of the decision contained in the judgment. Where a ground of appeal does not meet this rudimentary threshold, it is incompetent – First Bank of Nigeria Plc Vs Yerima (2020) 8 NWLR (Pt 1725) 63, Okechukwu Vs Obiano (2020) 8 NWLR (Pt 1726) 276, Okpulor Vs Okpulor (2020) 8 NWLR (Pt 1727) 427.
An appeal is against the decision of a lower Court and a challenge to the validity of that decision – Chukwuogor Vs Chukwuogor (2006) 7 NWLR (Pt 979), United Bank of Africa Plc Vs BTL Industries Ltd (2006) 19 NWLR (Pt 1013) 61, Shettima Vs Goni (2011) 18 NWLR (Pt 1279) 413. It is a formal request for a decision to be changed. Thus, the filing of an appeal presupposes the existence of some decision which is appealed against on a given point or points. In the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided – Babalola Vs State (1989) 4 NWLR (Pt 115) 264, Atoyebi Vs Government of Oyo State (1994) 5 NWLR (Pt 344) 290, Mercantile Bank of Nigeria Plc Vs Nwobodo (2005) 14 NWLR (Pt 945) 379, Dagaci of Dere & Ors Vs Dagaci of Ebwa & Ors (2006) 7 NWLR (Pt 979) 382, Yare Vs National Salaries, Wages and Income Commission (2013) 12 NWLR (Pt 1367) 173. PER ABIRU, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision/ruling of Hon. Justice L. O. Orojo of the High Court of Osun State sitting at Ejigbo, delivered on 11th day of March, 2022 in Suit No: HEJ/5/2022.
The facts giving birth to this appeal as reflected by the records of appeal is that; the 1st–4th Respondents, commenced an action by way of an Originating Summons before the lower Court claiming certain declaratory reliefs and injunction based on some political questions touching on leadership of the 5th Respondent including issues relating to election of candidates for the Governorship election coming up on the 16th day of July 2022.
During the proceedings of March, 11th 2022 the Appellant’s Counsel raised Preliminary Objection toughing on the jurisdiction of the lower Court, the learned trial Judge decided that the Preliminary Objection would be heard along with the substantive action.
Piqued by this decision the Appellant who was the 3rd Respondent before the lower Court appealed to this Honourable Court vide a Notice of Appeal filed on 21st March 2022 which was later amended with the leave of this Court granted on 17th day of May 2022.
The Amended Notice of Appeal filed on 13th May 2022 and deemed on 17/5/2022 contains three Grounds of Appeal which goes thus:
GROUND 1
The Learned trial Judge erred in law and breached the Appellant’s right to fair hearing when the learned trial Judge gave a ruling that the preliminary objection raised by the Appellant’s counsel shall be heard alongside the substantive suit.
PARTICULARS OF ERROR
i. Issue of jurisdiction is fundamental to adjudication.
ii. The learned trial Judge erred in law by making an order to subsume the issue of jurisdiction into the substantive suit.
iii. The learned trial Judge breached appellant’s right of fair hearing by not first and foremost venturing to consider the preliminary objection before dabbling into the substantive suit.
iv. By the Supreme Court decision in SYLVA V. INEC (2015) 16 NWLR, Pt. 1486 PAGE 576, SC, no rule of Court shall defeat the issue of jurisdiction once raised, and it must be resolved to determined whether the Court has jurisdiction or not before any further steps.
GROUND 2
The learned trial Judge erred in law when he assumed jurisdiction over an internal affair of the People’s Democratic Party in respect of which he lacks jurisdiction.
PARTICULARS
i. The lower Court lacks jurisdiction to entertain issues affecting internal affairs of a Political Party
ii. The lower Court ought to have declined the suit since it bothers on political question as to leadership and authority of a political party to conduct party congresses.
GROUND 3
The lower Court erred in law when it sought to adjudicate over a political matter bothering on the congresses of the people democratic party to elect its gubernatorial candidate for Osun 2022 Governor Election and when the plaintiffs are not aspirants, in clear violation of the provision Section 84(12) & (13) of the Electoral Act, 2022.
The Records of Appeal was transmitted on 25th March 2022 deemed on 28th April 2022 while on the 28th day of April 2022 a Supplementary Record was further transmitted which process was deemed on 17/5/2022
Meanwhile on the 30th day of March 2022 Appellant filed in his Appellant’s Brief Argument same was also deemed on 28th April 2022. Learned Counsel formulated two issues for determination namely:
ISSUES FOR DETERMINATION
(1) Whether going by the decision of the Supreme Court in Sylva V. INEC (2015) 16 NWLR (Pt. 1484) 576 and the Court of Appeal decision in Nigerian Ports Authority V. Mr. Sam Nmeje & Ors (2020) LPELR 51849, the lower Court was right to have ordered the hearing of the Preliminary Objection raised by the Appellant to be subsumed into the substantive suit when the said objection bothers on outright lack of jurisdiction. Ground 1.
(2) Whether having regards to the provisions of Section 84(12) and (13) of the Election Act 2022, the settled position of law by the Supreme Court and the Court of Appeal, the lower Court has the jurisdiction to entertain the case as constituted and as instituted before it. (Grounds 2 and 3)
The 1st–4th Respondents Amended Brief was filed on 6th day of May 2022 and deemed on 17th day of May 2022 wherein Learned Counsel for the Respondents Mr. Kehinde Adesiyan Esq. raised a Preliminary Objection on so many grounds, I shall reproduce the Notice of Preliminary Objection in order to appreciate the questions and grounds relied upon to challenge the competence of these appeal.
The Appellant Counsel countered the Preliminary Objection in his appellant’s reply brief.
“PRELIMINARY OBJECTION BROUGHT PURSUANT TO ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2021
TAKE NOTICE that the 1st–4th Respondents herein named intend, at the hearing of the Appeal to rely upon the following Preliminary Objection, notice whereof is hereby given to you viz:
That the appeal of Appellant is incompetent and liable to be struck out as this Honourable Court lacts jurisdiction to hear and determine the appeal
AND TAKE NOTICE that the grounds of these objections are as follows:
(a) The Notice of Appeal relied upon by the Appellant dated 21st March, 2022 and filed same day was manifestly incompetent as same is not meant for this Honourable Court but for the lower Court whose order is sought to be appealed against. This is the said Notice of Appeal headed as follows:
“IN THE HIGH COURT OF JUSTICE OF OSUN STATE
IN THE EJIGBO JUDICIAL DIVISION
HOLDEN AT EJIGBO”
See pages 37-40 of the Record of Appeal.
(b) The heading ascribed to the Notice of Appeal which is an initiating process that trigger this appeal is incurably incompetent and defective by virtue of Order 7 Rule 2 of the Court of Appeal Rules 2021.
(c) The effects of Grounds 1, 2 and 3 above is that the Originating Process of the Appeal is incompetent.
(d) Further to Ground 3 above, the incompetent Notice of Appeal, which is the originating process in this Court, robs this Honourable Court of Jurisdiction in respect of the matter.
(e) The Supplementary Record filed and served on the 28th April, 2022 is not competent in that it did not fulfil the provision of Order 8 Rules 6(2) and 7 of the Court of Appeal Rules 2021 which state what the Record of Appeal or Supplementary Record must contained to be qualified is lacking.
(f) The ruling sought to appeal against bothers on the exercise of discretionary power of the lower Court to do and such appeal cannot be raised without first seeking the leave of the lower Court or this Honourable Court.
(g) It is also incompetent to appeal against lower Court’s exercise of discretion one way or the other.
(h) Being an Interlocutory Appeal, on the exercise of judicial discretion, it amounts to appeal that bothers on mixed law and facts and leave of Court is mandatory to be first sought and obtained either from the lower Court or this Honourable Court which the Appellant had failed to obtain before filing this appeal.
(i) The entire ground 2 of the Appeal bothers on issue still pending before the lower Court and which did not emanate from the proceedings of the lower Court but an attempt to confer on this Honourable Court the powers to exercise original jurisdiction over personal or individual matter which the Court lacks competence to so act.
(j) By virtue of Section 239(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the original jurisdiction of the Court of Appeal is only restricted to whether a person had been validly elected to the office of the President or Vice President, whether the term of the President and Vice president had ceased and whether the office of the President or Vice President has become vacant and nothing else.
(k) From the Record, there is no valid proceeding of 11th March, 2022 being appealed against before this Honourable Court.”
As a rule and necessary requirement whenever there is a Preliminary Objection to the hearing of an appeal the Court is expected to first hear and determine the Preliminary Objection before taking any further step. See Rabiu V. Adebajo (2012) LPELR-9709 (SC). I will therefore hasten to resolve the Preliminary Objection presented by the 1st–4th Respondents before I proceed to consider the appeal on the merits if need be.
Because the grounds of the Preliminary Objection are many and inter-lapping I will attempt to put them into two or more groups so as to resolve those that are similar together and simultaneously.
The 1st ground of the objection contained in grounds A, B, C and D is challenging the competence of the Notice of Appeal on the ground that it was wrongly headed thus:
“IN THE HIGH COURT OF OSUN STATE
IN THE EJIGBO JUDICIAL DIVISION
HOLDEN AT EJIGBO”
Instead of being correctly headed as follows:
“IN THE COURT OF APPEAL
AKURE DIVISION
HOLDEN AT AKURE”
This defect Learned Counsel argued has rendered the Notice of Appeal, incurably incompetent which cannot be regularized by any amendment. That you cannot put something on nothing and expect it to stand. Mcfoy V. U. A. C. (1962) AC 152 which principle was reemphasized by Okoro JSC in Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350.
Appellant Counsel in his reply argued that the wrong heading of the Notice of Appeal does not rob this Court of its appellate jurisdiction conferred by Section 240 of the 1999 Constitution as an appeal against the decision of the High Court cannot lie to the High Court again notwithstanding the heading Learned Counsel submits that the Notice of Appeal reads:
“TAKE NOTICE that the Appellant being dissatisfied with the decision of the Osun State High Court sitting in Ejigbo … doth hereby appeal to the Court of Appeal”
Submits that the Preliminary Objection which attacked only the heading of the Notice of Appeal is purely swimming in technicality, whereas Courts today are concerned with substantial justice. See Erastus B. O. Akingbola V. F. R. N. (2018) 5 SC (Pt. 1) 116.
By Section 240 of the 1999 Constitution only the Court of Appeal has jurisdiction to hear appeals from the decisions of the High Court of State. Therefore every appeal against the decision of a State High Court goes to the Court of Appeal and not to the State High Court again.
It is indeed true and quite clear that the original or initial Notice of Appeal filed by Appellant on 21st day of March, 2022 was headed:
“IN THE HIGH COURT OF OSUN STATE”
But looking further into the main body of the Notice of Appeal gives Notice “that the Appellant being dissatisfied with the decision of the Osun State High Court sitting at Ejigbo in the ruling delivered by Honourable Justice L. O. Orojo … doth hereby appealed to the Court of Appeal on the grounds stated in paragraph 3”
It is clear from this that ab initio the Appellant’s appeal was directed to the Court of Appeal and not to the High Court of Osun State which gave the decision appealed against in the first place.
Heading the Notice of Appeal in the manner it was done here in view of the contents of the body of the Notice of Appeal must therefore be seen as a mere irregularity which can be and has infact being cured by the Amended Notice of Appeal filed on 13th May 2022 which was deemed on 17/5/2022 the Amended Notice of Appeal is appropriately headed apparently.
In the case of Mana V. PDP & Ors (2011) LPELR-19754 this Court per Bada JCA held:
“The effect of a deeming order is to regularize the process in question. The Black’s Law Dictionary (8th Edition) page 446 defined the word “deem” as follows: to treat something as if it were really something else or it had qualities that it does not have e.g. although a document was not in fact signed until April, 21st, it explicitly states that it must be deemed to have been signed on 14th April in Williams V. Mokwe (Supra) it was held that where an appellate Court grants an application for leave to appeal and also deems the Notice of Appeal as being properly filed, the appeal is therefore regularized and has retrospective effect. See also the case of Ubom V. Anaka (Supra)”
Accordingly by the deeming order granted by this Court in respect of the Appellant’s Amended Notice of Appeal which bears the appropriate heading in terms of the Court, to which the Notice was directed, for all purposes therefore the irregularity has been regularized and the Notice of Appeal becomes valid. The same thing applies to the Records of Appeal which initially contained the name of a Judge different from Justice Orojo who actually presided over the proceedings of 11th March 2022. Ground E of the Preliminary Objection by the Order of this Court deeming the Supplementary Record which now has the name of the true and appropriate Judge, who presided over the proceeding of the 11th day of March 2022 properly inserted, it must be accepted the record is duly regularized the initial irregularity having been corrected. I so hold.
The next ground of objection is the one lined up under F. G. and H by the 1st–4th Respondents this essentially deals with the fact that the Appellant did not seek or obtain leave to appeal his grounds of appeal being an interlocutory appeal on mixed law and facts and on exercise of discretion of Court submit that under the provision of Section 241(1)(a) and (b) and Section 242(1) of the Constitution of the FRN 1999 it is mandatory that where an appeal is interlocutory or is on mixed law and facts, the Appellant has to seek and obtain leave of the trial or appellate Court to file an appeal, failure to do so will render any notice of appeal so filed as incompetent and therefore liable to be struck out. See Mohammed V. Olawunmi (1990) 2 NWLR (Pt. 133) 458 and Muritala Olosunde & Ors V. Chief Sikiru Eyialegan & Ors (2005) ALL FWLR (Pt 242) 503.
The Learned Counsel to 1st–4th Respondents prayed us to strike out the Notice of Appeal on that ground.
In his response on this ground Mr. Wole Jimi-Bada Esq. Learned Appellant’s Counsel submits that the decision of the lower Court appealed against is not about the exercise of discretion but misapplication and misunderstanding of the law in relevant situation. These three Grounds of Appeal all raised issues of breach of right of fair hearing which is an issue of law, constitutional and issue of jurisdiction. See Alhaji Mansur Ahmed V. Registered Trustee of A. K. R. C. C. (2019) EJSC (Vol. 107) page 19 and Adigun V. A. G. Oyo State (1987) NWLR (Pt 53) 709.
From the particulars in support of ground 1 issue of jurisdiction, breach of fair hearing and failure to abide by the Supreme Court decision in Sylva V. INEC (2015) 16 NWLR (Pt 1486) 576 are at the front burner, there is no doubt that the ground raised pure issue of law and the decision to subsume the hearing of the Preliminary Objection with the substantive suit is beyond the exercise of discretion rather it is about whether the lower Court was right or wrong in law not to have heard the Preliminary Objection first and foremost when it is about the crucial question of jurisdiction. The lower Court failed to follow the Supreme Court decision in Sylva V. INEC (Supra) in resolving the issue of jurisdiction.
The right of an aggrieved person to appeal against the decision of the High Court to this Court is constitutionally guaranteed Section 241 of the 1999 Constitution of FRN has made robust provisions in respect of the right to appeal. In practice, an appeal can either be against, a final or interlocutory decisions of the lower Court. In this particular instance, we are dealing with an interlocutory appeal against the decision of the High Court of Osun State to subsume and hear together a Preliminary Objection on its jurisdiction with the main suit on the basis of which this appeal came up, at an interlocutory stage for which the 1st–4th Respondents are contending that leave is necessary before the appeal become competent in the circumstance.
The Supreme Court and infact this Court have had numerous occasions to pronounce on instance like this one of which was in the case of Mohammed V. Olawunmi (1990) LPELR-1893 SC where it was held as follows:
“Being an interlocutory appeal the time for filing the same is severely reduced and limited to 14 days if there is an appeal within the 14 days and the ground of appeal involves question of law alone, the appeal is competent as the constitution enables an appellant to appeal as of right in such circumstances. See Section 220(1) “… Of the 1979 Constitution” NOTE Section 220(1) 1979 Constitution is the same as 241 (1) of 1999 Constitution
This Court per Akomolafe Wilson JCA in Hassan V. FRN & Ors (2018) LPELR-44574 (CA) held:-
“It is observed that the objection of the 1st Respondent is actually predicated on the fact that this appeal arose from an interlocutory decision. The mere fact that an appeal is against an interlocutory decision does not necessarily mean that the leave of Court must be obtained. It is the nature of the appeal that will determine that the leave of the Court is required pursuant to Section 241(2) of the Constitution.
It is only when the grounds of appeal are based on facts or mixed law and facts that the leave of the lower Court must be sought and obtained before such interlocutory appeal can be competent. Where the interlocutory appeal is based simply on grounds of law, the Appellant can appeal as of right to the Court of Appeal.”
From the nature of this appeal based on the 3 grounds in the Notice of Appeal and the issues formulated thereunder, it is clear that the appeal is simply challenging the misunderstanding and misapplication of the law in its decision and hence jurisdiction to take the path it chosed to follow which the Appellant argued the lower Court had no right or jurisdiction to embark upon. It goes without saying therefore this appeal borders on issues of jurisdiction for which no leave is required to appeal even in respect of an interlocutory decision.
I find no merit on this ground too.
The remaining grounds of the Preliminary Objection is as captured under paragraphs I-J of the Notice of Preliminary Objection dealing with ground two, more precisely issue two formulated by the Appellant which the 1st–4th Respondents’ Counsel submit bothers on the real question before the trial Court which has not been determined yet. So asking this Court to decide on it at this stage will tantamount to calling upon this Court to assume original jurisdiction which is prohibited by the constitution. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156, A. G. Lagos V. A. G. Federation (2014) LPELR 22701 (SC) and Rober I Ikweki & Ors V. James Ebele (2005) ALL FWLR (Pt. 257) 1401 where it was held that it is not possible to found a right of appeal to the Court of appeal on a matter that did not arise before the High Court.
So the entire ground 2 of the Notice of Appeal having not borne out of issues already determined by the lower Court is grossly incompetent and an abuse of Court process.
The Appellant’s Counsel responded that issue of jurisdiction can be raised at any time even on appeal even if not raised at the lower Court that grounds 2 and 3 raises the issue of the jurisdiction of the lower Court with respect to the matter instituted before it. And this Court is empowered by Section 15 of the Court of Appeal Act to determine the issue as part of the question raised in this appeal. Notwithstanding that the lower Court is yet to determine the issue of jurisdiction before it.
The Court of Appeal is there to hear and determine appeals against the decisions of the High Court whether State or Federal Section 241 of the 1999 Constitution what this implies is that there must always first be a decision upon which an appeal is lodged for this Court to exercise its appellate jurisdiction but an issue which has not been decided by the lower Court, Court of appeal has no business to look into it. This is the general position subject to certain exceptions. Section 15 may come to help out, having allowed the Court of Appeal to assume the role of the trial Court but where an issue has been submitted to the lower Court and decision over same is still being awaited or not yet rendered it will be much more convenient and more in line with substantial justice to allow the trial Court to hear and determine the question so that only when an appeal comes out of such determination then the Court of appeal will validly assume jurisdiction in its appellate capacity. See Ayowe V. President FRN (2005) LPELR 11334 CA.
Since the issue of the determination of the question of the jurisdiction of the lower Court is the bone of contention now pending before the lower Court; there is no urgency or any special reason in this appeal as will necessitate this Court to invoke the provision of Section 15 of the Court of Appeal Act to assume the role of the trial Court to hear and determine the issue that is now pending before the lower Court without first allowing the lower Court hear the Preliminary Objection raised before it and come to an appealable decision in the normal sequence of things.
It is trite law that the general power of the Court of Appeal under Section 15 of the Court of Appeal Act (2004) is unfettered and far reaching. However, it is equally trite that the exercise of the power under the said Section 15 is not merely as a matter of course it is necessary to exercise the powers judicially and judiciously. See F. R. N. V. Daniel (2011) LPELR–4152 (CA). This Court shall therefore restrain itself from pronouncing on the pending issue.
This ground of objection has merit and it is hereby sustained.
Accordingly grounds 2 and 3 of the Appellant’s Notice of Appeal and issue 2 in the Appellant’s Brief of Argument formulated under those two incompetent grounds are hereby struck out. All other heads of objections discussed and resolved above apart from this one are however overruled basically because all of them are hinged on mere technicalities.
Learned Counsel should understand that it is now a well known and more acceptable principle of law that reliance on technicalities which could be due to human errors usually leads to injustice, as justice can only be done if the substance of the matter rather than the form is looked at. Such minor mistakes or errors are liable to happen from time to time but this should not deprive a party from having his complaint ventilated and determined on the merit. This is more so when the mistake is that of Counsel or registry of the Court, for example, giving a defective title to a process or omitting to write the correct name of a Judge, this is by the way anyway.
Going into the merit of the appeal now, let me be clear that I shall determine the appeal based on the remaining lone live issue submitted by the Appellant’s counsel in the Appellant’s Brief of Argument which goes thus:
“Whether going by the decision of the Supreme Court in Sylva V. INEC (2015) 16 NWLR (Pt 1486) 576 and the Court of Appeal decision in Nigeria Ports Authority V. Mr Sam Nmeje & Ors (2020) LPELR–51849, the lower Court was right to have ordered the hearing of the Preliminary Objection raised by the Appellant to be subsumed into the substantive suit when the said objection bothers on outright lack of jurisdiction.”
The learned Counsel submits that from the proceedings of the lower Court contained at pages 32-36 of the records, the Appellant’s Counsel raised an issue of jurisdiction orally, however, the Learned Trial Judge ordered them to file processes in reaction to the substantive suit and then the Preliminary Objection would be heard alongside the substantive suit. Submits further that a Preliminary Objection that is capable of terminating a suit at the preliminary stage must be heard and determined first before taking any step further in the case. He cited Nigeria Ports Authority V. Mr Sam Nmeje & Ors (2020) LPELR–51849 (CA) where a similar scenario played out at the lower Court but on appeal to the Court of Appeal where the appeal was allowed, the Court of Appeal held that Preliminary Objection if raised by a party should first be determined before the substantive suit.
Submits further that the failure to tow the line of the Supreme Court and Court of Appeal by the trial Court amounts to a breach of the Appellant’s right of fair hearing and it has rendered the decision of the lower Court a nullity. See Akpamgbo Okadigbo V. Chidi (…) (2015) 10 NWLR (Pt. 1466) 17.
Counsel prayed this Court to resolve the issue in favour of the Appellant.
The 1st–4th Respondents in their response reframed the Appellant’s issue to read as follows:
“Whether the order of the lower Court to hear and determine the extant application which includes the Appellant’s Notice of Preliminary Objection and the Originating Summons together was granted without jurisdiction or injudicially or injudiciously.”
Making his submission on the issue Learned Respondents’ Counsel submit that the order of the lower Court of 11th March 2022 as contained in page 35 of the record of appeal was granted in the exercise of the discretion of the Court when both parties agreed that time was of essence. Submit that there are situations where the Court can decide to hear all applications and the substantive suit together then the Court in its judgment will first consider the Preliminary Objection if found meritorious will dismiss the suit and where the Preliminary Objection has no merit the Court will proceed at one swoop and decide the substantive matter. And there is no injustice or prejudice that any party may suffer in that circumstance. Especially in cases commenced by Originating Summons where Courts may hear the Preliminary Objection on jurisdiction along with the substantive case. See Olorunkunle V. Adigun (2012) 6 NWLR (Pt. 1297) 407 and Dapianlong V. Dariye (2007) NWLR (Pt. 1036) 332.
Learned Counsel urged this Court to dismiss the appeal.
The general position of the law is that every Judge is the master of his own Court he has the right and the power to determine how matters proceed in his Court, in so doing the Judge is entitled to make orders and give such directives as will aid the effective and timeous determination of disputes before the Court without compromising the need to do substantial justice. See Executive Governor, Osun State V. Barrister N. O. Folorunsho (2014) LPELR 23088 (CA).
Where this Court held per Denton West “A Court (Nay Judge) is under a statutory duty to assert its control over proceedings before it” See also Onnoghen V. FRN (2019) LPELR 44689 (CA) Addah JCA:
“A Judge of a Court or Tribunal is the master of the proceedings he is in charge of how and when the matters before him are heard that is all within his Prerogative”
Clearly, it is the exercise of such discretionary powers that the Trial Judge of the lower Court made the order or gave the directive that the Appellant should file their response to the Originating Summons so that the Preliminary Objection will be taken together with the main suit. This practice is not strange in our judicial system.
Contrary to the submissions of the learned Appellant’s Counsel a Court is perfectly entitled and quite within its rights to combine the hearing of a Preliminary Objection along with the main suit especially in actions commenced by way of Originating Summons, what the Court has to do is that it cannot determine the main action without first determining its own jurisdiction. Put differently, where the Preliminary Objection challenging the jurisdiction of the Court is heard along with the main action under an Originating Summons proceeding, the first duty of the Court is to determine its own jurisdiction that is whether the Court is competent to hear and determine the suit on its merit or not, depending on how the decision on the question of jurisdiction is resolved, the matter either goes on or is struck out in limine. See Olorunkunle and Anor V. Adigun & Ors (2012) LPELR 8024 (CA), Gbadebo & Anor V. Oyenitun & Or. (2021) LPELR 52928 (CA).
All that we are saying, supported by the various authorities cited above is that, it is within the competence and discretion of the Court nay Judge to combine the hearing of a Preliminary Objection along with the substantive suit especially under the Originating Summons, provided always that the issue of jurisdiction raised in the Preliminary Objection is, first resolved one way or the other. This procedure will surely make for an expeditious determination of the matter before the Court.
In the circumstance of this case, the directive or order of the lower Court which prompted this appeal was undoubtedly aimed at achieving this fact bearing in mind that both parties had acknowledged that time was of essence in the matter. This unnecessary appeal has unfortunately helped in drawing aback the otherwise steady progress of the matter.
Accordingly, I find no iota of merit in this appeal same is hereby dismissed with N100,000.00 cost in favour of the Respondents.
I hereby remit the case No: HEJ/5/2022 back to the Osun State High Court of justice, Ejigbo Division to enable the Presiding Judge proceed with the hearing of the matter forthwith to its logical conclusion.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in draft, the leading judgment prepared by my learned brother, YUSUF ALHAJI BASHIR, JCA; in this appeal.
My learned brother has in the leading judgment comprehensibly addressed all the issues formulated for the determination of the appeal at hand; and I agree with the attitude of his lordship to the said issues as well as the conclusions reached by his lordship in considering the appeal on the merit.
I have nothing more to add to the leading judgment by way of contribution.
Accordingly, I too find this appeal to be totally lacking in merit and same is hereby dismissed by me. I abide by all the consequential orders made in the leading judgment; including the order in relation to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein. I just wish to make a few comments.
The first to the fourth Respondents commenced the action in the lower Court by an Originating Summons and by which they sought for declaratory orders and injunction against. The fifth Respondent, the sixth Respondent, the Appellant and the seventh Respondents were the first to the fourth Respondents respectively to the action in the lower Court. The Appellant, as the third Respondent in the lower Court, filed a notice of preliminary objection challenging the jurisdiction of the lower Court to entertain the action, as well as a counter affidavit to contest the Originating Summons on the merit. The lower Court, after hearing from the Counsel to the parties on the order of hearing the preliminary objection and the Originating Summons, delivered a ruling wherein it stated that it would hear both of them together and rule on the preliminary objection and deliver judgment on the Originating Summons on the same day. This ruling is the subject matter of this appeal.
The Respondents filed a preliminary objection challenging the competence of this appeal. One of the grounds of the challenge is that the notice of appeal, by which the appeal was originated, was headed “In The High Court of Osun State” instead of “In The Court of Appeal”. Counsel to the Respondents argued that this error rendered the appeal incurably incompetent and that it is a defect that cannot be corrected and that as such the appeal should be struck out. With respect to Counsel, nothing can be farther from the true position of the law.
The law, by a long line of case law authorities, is that an error in the heading of a notice of appeal will not vitiate the hearing of the appeal on the merits, particularly more so if the error has not occasioned a miscarriage of justice and the parties have not been misled thereby. Such an error can be amended in order to do substantial justice to the parties and so that technicalities will not be allowed to becloud the sense of justice – see for example Surakatu Vs Nigeria Housing Development Society Ltd (1981) 4 SC 26, Onwunali Vs State (1982) 9 SC 95, Agina Vs Agina (1991) 4 NWLR (Pt 185) 358, Maska Vs Ibrahim (1999) 4 NWLR (Pt 599) 415, United Nigeria Co. Ltd Vs Nahman (2000) 9 NWLR (Pt 671) 177, Bayo Vs Njidda (2004) 8 NWLR (Pt 876) 544, Clev Josh Ltd Vs Tokimi (2008) 13 NWLR (Pt 1104) 422, Registered Trustees of the Airline Operators of Nigeria Vs Nigerian Airspace Management Agency (2014) 8 NWLR (Pt 1408) 1, Akingbola Vs Federal Republic of Nigeria (2018) 14 NWLR (Pt 1640) 395, Adegbola Vs Idowu (2020) 7 NWLR (Pt 1722) 94. The error in the heading of the notice of the appeal was peripheral and infinitesimal and did not affect its competence and it has been corrected by the Appellants by an amended notice of appeal.
The Respondents also challenged the competence of the Grounds Two and Three of the notice of appeal and the second issue for determination formulated from them by Counsel to the Appellant. Counsel contended that the two grounds of appeal and the Issue formulated from them did not emanate from the ruling appealed against and were not directed at a decision contained in the ruling. The two grounds of appeal read thus:
Ground Two
The learned trial Judge erred in law when he assumed jurisdiction over an internal affair of the Peoples Democratic Party in respect of which he lacks jurisdiction.
Ground Three
The lower Court erred in law when it sought to adjudicate over a political matter bothering on the Congresses of the Peoples Democratic Party to elect its Gubernatorial candidate for Osun 2022 Governorship Election and when the Plaintiffs were not aspirants, in clear violation of the provision of Section 84(12) & (13) of the Electoral Act, 2022.
From the two grounds of appeal, Counsel to the Appellant distilled his second issue for determination in the appeal which reads thus:
Whether having regards to the provisions of Section 84(12) and (13) of the Electoral Act 2022 and the settled position of law by the Supreme Court and Court of Appeal, the lower Court has jurisdiction to entertain the case as constituted and as instituted before it.
Now, it is an elementary rule of the appellate Court practice that grounds of appeal must arise and emanate from the terms of the judgment of the lower Court and must be directed at or be related to the ratio decidendi of the decision contained in the judgment. Where a ground of appeal does not meet this rudimentary threshold, it is incompetent – First Bank of Nigeria Plc Vs Yerima (2020) 8 NWLR (Pt 1725) 63, Okechukwu Vs Obiano (2020) 8 NWLR (Pt 1726) 276, Okpulor Vs Okpulor (2020) 8 NWLR (Pt 1727) 427.
An appeal is against the decision of a lower Court and a challenge to the validity of that decision – Chukwuogor Vs Chukwuogor (2006) 7 NWLR (Pt 979), United Bank of Africa Plc Vs BTL Industries Ltd (2006) 19 NWLR (Pt 1013) 61, Shettima Vs Goni (2011) 18 NWLR (Pt 1279) 413. It is a formal request for a decision to be changed. Thus, the filing of an appeal presupposes the existence of some decision which is appealed against on a given point or points. In the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided – Babalola Vs State (1989) 4 NWLR (Pt 115) 264, Atoyebi Vs Government of Oyo State (1994) 5 NWLR (Pt 344) 290, Mercantile Bank of Nigeria Plc Vs Nwobodo (2005) 14 NWLR (Pt 945) 379, Dagaci of Dere & Ors Vs Dagaci of Ebwa & Ors (2006) 7 NWLR (Pt 979) 382, Yare Vs National Salaries, Wages and Income Commission (2013) 12 NWLR (Pt 1367) 173.
This is the whole basis of exercise of jurisdiction by an appellate Court. This point was reiterated in Military Administrator, Ekiti State Vs Aladeyelu (2007) All FWLR (Pt 369) 1195 at 1220 D-E, where the Supreme Court stated that:
“Appeals are usually against the ratio decidendi in the judgments on appeal. An appeal must be directed at the reasons for the judgment of the Court appealed against and not outside it. In the instant case, there was no decision of the trial Court relating to the installation of the appellant, the Court of Appeal was therefore in error to have made orders on such because it lacked jurisdiction to do so.”
In Bamaiyi Vs Attorney, General of the Federation (2001) 12 NWLR (Pt 727) 468, the Supreme Court explained the word “decision” to mean a determination of a judicial or quasi judicial nature; a judgment, decree or order pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. A decision is a pronouncement made by a Court which stands as its final verdict to a question brought before it for determination – Aduke Vs Longe (1962) All NLR 201, Akande Vs Adesanwo (1962) All NLR 206, Oredoyin Vs Arowolo (1989) 4 NWLR (Pt 114) 172, Umar Vs Onwudine (2002) 10 NWLR (Pt 774) 129.
As stated in the earlier part of this judgment, the issue considered by the lower Court and in respect of which it decided in the ruling appealed against was on the order of hearing the notice of preliminary objection challenging its jurisdiction filed by the Appellant, as third Respondent, and the Originating Summons of the Respondents and the lower Court ruled that it would hear them together. The lower Court did not decide the question of whether or not it had the jurisdiction to hear the case of the Respondents. This was the question on the pending notice of preliminary objection of the Appellant, and which the Appellant was not patient for the lower Court to hear and resolve before rushing to this Court. What the Appellant seeks to do by the two grounds of appeal and the issue for determination formulated therefrom in this appeal is to side-step the lower Court and seek directly from this Court answer to a question he raised before the lower Court, but which he did not allow the lower Court to answer.
The law is that this Court cannot decide an issue and cannot also presume or deduce on any issue from anywhere, which has not been argued before and decided by the time the appeal was filed and that it cannot exercise its powers under Section 15 of the Court of Appeal Act to deal with an appeal before it in such a way as to overreach the trial Court The powers of this Court under Section 15 of the Court of Appeal Act were not intended to be used for the purpose of hearing, as opposed to rehearing, a matter or issue for the first time on appeal which the trial Court had not heard and determined – Williams Vs Nwosu (1994) 3 NWLR (Pt 331) 156, Exxon Mobil Corporation Vs Archianga (2018) 14 NWLR (Pt 1639) 229 at 252F-G. Grounds Two and Three of the notice of appeal of the Appellant are incompetent.
It is settled law that for an issue for determination to be viable in an appeal, it must arise from a competent ground of appeal – Umanah Vs NDIC (2016) 14 N WLR (Pt 1533) 458, Mato vs Hember (2018) 5 NWLR (Pt 1612) 258, Sanmi Vs State (2019) LPELR- 47418(SC), Doregos Vs Adele (2020) LPELR-51815(CA). The second issue for determination formulated by the Counsel to the Appellant is thus also incompetent.
This leaves only one viable issue for determination in the appeal – whether the lower Court was correct to have ordered the hearing of the notice of preliminary objection of the Appellant along with substantive Originating Summons.
The law recognizes that it is the right of the parties to file and present their case before the Courts for adjudication in the manner they please, guided by the Rules of Court. However, this is where the rights of the parties stop and it does not extend to determining how the dispute is to be resolved. The manner of the resolution of the dispute presented by the parties for adjudication is at the discretion of the Court to which the dispute is presented, also guided by the Rules of the Court and the dictates of justice. It is not subject to the dictates of parties to an action or of their Counsel. It is trite law that the Court is not at the beck and call of any of the parties to do as they wish and must, should always, be in control of proceedings before it – Fagbule Vs Rodrigues (2002) 7 NWLR (Pt 765) 188, Executive Governor of Osun State Vs Folorunsho (2014) LPELR 23088(CA). In Onnoghen Vs Federal Republic of Nigeria (2019) LPELR 47689(CA), this Court made the point that “a Judge of a Court or Tribunal is the master of the proceedings. He is in charge of how and when the matters before him are heard, That is all within his prerogative. No one can remove that from the Court or Tribunal.”
Therefore, where the procedure adopted and steps taken by a Court in resolving the dispute presented to it for adjudication is fair, credible and just, and has not occasioned a miscarriage of justice, an appellate Court has no business interfering therewith. This is particularly more so where the said procedure adopted by the trial Court had been sanctioned by the appellate Courts in similar instances in the past.
It has been held by the appellate Courts that in situations where a defendant or respondent to an action commenced by the Originating Summons files a motion challenging the competence of the action, as in the present case, a trial Court would be within its rights to hear both the motion and the Originating Summons together, so long as it rules on and determines the motion first before proceeding, if need be, to render its decision on the Originating Summons – Amadi Vs Nigeria National Petroleum Corporation (2000) NWLR (Pt 674) 76 at 100, Senate President Vs Nzeribe (2004) 8 NWLR (Pt 878) 251 at 274, Ossai Vs Wakwah (2006) 4 NWLR (Pt 969) 208, Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423, Central Bank of Nigeria Vs Dr. B. O. Akingbola & Anor (2019) LPELR-48807 (SC), Okobi Vs Okobi (2020) 1 NWLR Pt 1705) 301 and Gbadebo Vs Oyenitun (2021) LPELR-52928(CA). In Attorney General, Lagos State Vs Attorney General, Federation (2014) 9 NWLR (Pt 1412) 217 at 263F-G, the Supreme Court made the point thus:
“When a preliminary objection is raised in an action such as the present one commenced by originating summons, it is always better to take the preliminary objection with the substantive case so that if the objection succeeds, the case or action is terminated in limine. If the objection fails however, then the Court will proceed to determine the substantive action on its merit. “
The decision of the lower Court in the ruling appealed against to hear the notice of preliminary objection of the Appellant along with the Originating Summons of the Respondents was thus proper, correct and regular. This Court has no business interfering with the decision.
It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit on the appeal and I hereby dismiss same, I affirm the decision contained in the ruling of the High Court of Osun State delivered in Suit No HEJ/05/2022 by Honorable Justice L. O. Orojo on the 11th of March, 2022. I abide by the order on costs and consequential orders in the lead judgment.
Appearances:
Oluwole Jimi-Bada, Esq. For Appellant(s)
Kehinde Adesiyan, Esq. – for 1st – 4th Respondents
Kehinde Kolawole – holding brief for I. T. Tewogbade – for 5th – 6th Respondents
Bukola Durojaiye, Esq., with him, Patrick Arasanmi, Esq. – for 7th Respondent For Respondent(s)
