DR. ANDY UBA v. PRINCE (HON.) NICHOLAS UKACHUKWU & ANOR
(2012)LCN/5480(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of June, 2012
CA/OW/21/2012
RATIO
APPEAL: LEAVE TO APPEAL : WHEN LEAVE TO APPEAL IS NOT OBTAINED, THE APPEAL IS REGARDED AS INCOMPETENT OR INVALID
Now, the law is that where the constitutionally prescribed or required leave to appeal was not obtained in any given case, by an Appellant, such an appeal is regarded as incompetent and therefore invalid. This is so because, an appeal like any other originating process can only be competent when it comes before the court by due process of law and upon fulfillment of any condition precedent to its competence. That being so, an appeal which requires leave of court, and such leave is not obtained is incompetent and ought to be struck out. See INVESTORS INT’L (LONDON) LTD. v. F.B.N. PLC. (supra) at pp.442-443 paras. H-A; AMADASUN v. UME (2007) 13 NWLR (Pt.1051) pg.214 and OBI-ODU v. DUKE (supra).Per OKORO, J.C.A.
”A cause of action has been defined simply as the existence of an aggregate of facts which when proved will entitle a plaintiff to a remedy against a defendant. See TAIYE OSHOBOJA V. ALHAJI SURAKATU I. AMUDA & ORS (1992) NWLR (Pt. 250) 690, BELLO v. A.G OYO STATE (1986) 5 NWLR (Pt. 45) 828; EGBE v. ADEFARASIN (1987) 1 NWLR (pt. 47) 1 at 20; EGBUE v. ARAKA (1983) 3 NWLR (Pt. 84) 598.” Per OKORO, J.C.A.
”It is trite that where a party is sued and served with an originating process and that process is subsequently amended, such amendment relates back to the date the original process was filed as earlier stated above. See JATAU v. AHMED (Supra). However, where there is an amendment of the process which adds the name of a new defendant in the process of the hearing and the said new defendant is served with the originating process or Notice whether amended or not, the proceeding against such a party shall be deemed to have begun on the date the service of such originating process or notice was served on him.” Per OKORO, J.C.A.
”I agree with the learned senior counsel for the 1st Respondents that it is now trite and well settled law that any amendment made or ordered at any stage of the proceeding before judgment or even in an appeal, dates back to the date when the pleadings were originally filed. This means that once pleadings are amended, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. See JATAU v. AHMED (2003) 1 SC (Pt. 11) 118 at 125; ROTIMI v. MC GREGOR (1974) 11 SC 102 at 116; PETROLEUM EQUALIZATION MANAGEMENT BOARD v. GREENIGAS LTD (1986) 3 NWLR (Pt. 39 132.” Per OKORO, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DR. ANDY UBA
[Sued for himself and on behalf of other persons who lay claim to their names having been purportedly submitted by a factional leader of the PDP, Anambra State Branch, Chief Benji Udeozor, to the 1st Respondent through a letter signed by the same Chief Benji Udeozor and dated 13/1/2011 but actually received by INEC on 17/1/2011 – Appellant(s)
AND
1. PRINCE (HON.) NICHOLAS UKACHUKWU
[For himself and on behalf of the other Aspirants for the positions of Senators and Members, Federal House of Representatives For Anambra State on the platform of the Peoples Democratic party (PDP) and who were successful in the primaries conducted by Senator Waku on the 7/1/2011 and 8/1/2011 and thus became candidates of the party in the General Elections slated for April, 2011 for positions of senator and Federal House of Representatives to Represent Anambra State in the same and whose Names are clearly set out in the verifying affidavit in support of this application and in the grounds].
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of M. G. Umar, J of the Federal High Court sitting at Umuahia delivered on the 1st day of February 2012, wherein the learned trial Judge made an order joining the Appellant (Dr. Andy Uba) as a co-Respondent in Suit No: FHC/UM/C/CS/92/2011, pending before it.
The 1st Respondent as Plaintiff in the court below, had filed an application for judicial review following the refusal of the 2nd Respondent (INEC) to accept and act on a list containing the names of the 1s Respondent Prince (Hon.) Nicholas Ukachukwu and others on the said list, which was submitted to the National Headquarters of the Peoples Democratic Party (PDP), in respect of candidates of the Peoples Democratic Party (PDP) for election into the National Assembly Constituencies for Anambra State in the general elections of April, 2011. Due to allegations of bias against the trial Judges, commencing from the Federal High Court Awka, the suit was finally transferred to the Federal High Court, Umuahia. At the Federal High Court, Umuahia, the 1st Respondent applied for and was granted an order joining the Appellant in the said suit as a Co-Respondent to defend the said suit in a representative capacity. The Appellant who was joined was dissatisfied with the ruling of the lower court, consequently filed a Notice of Appeal dated 4th day of February, 2012 and filed 08/2/2012. By Order of this court dated on the 02/4/2012, the Appellant was granted leave to amend the Notice of Appeal. The Amended Notice of Appeal is dated the 4th day of April, 2012 and filed the 05/4/2012.
The Amended Notice of Appeal consists of Grounds of Appeal, which without their particulars are as follows:
1. The court below erred in making the order of joinder of Dr. Andy Uba notwithstanding that the Application amounted to gross abuse of judicial process.
2. The Order of joinder of Dr. Andy Uba ought not to have been made as Dr. Andy Uba was in capable of being sued and/or action being maintained against him after Dr. Andy Uba had contested the election giving rise to the dispute and was declared the winner thereof.
3. The learned trial judge was wrong to have made an order joining Dr. Andy Uba in the matter having held that the res in the matter is “which list of candidates” should be used for the election.
4. The learned trial Judge was wrong when in the conduct of proceedings in this matter culminating in hearing of the Application for joinder, he made pronouncement which showed strong and/or likelihood of bias which prematurely determined the Ruling delivered by him on 1st February, 2012, joining Dr. Andy Uba into the action.
5. The court below was wrong when in its ruling, it held thus:
“this equally means that pre-election may continue as the election contended by the Respondent has been nullified.”
6. The court below was wrong to have joined the Appellant into the proceedings at the court below when the 1st Respondent lacks the capacity to prosecute the cause of action presented in the said 1st Respondent’s claim.
As the Rules of this court demand, the parties filed and exchanged Briefs of Argument which were subsequently amended consequent upon the Amendment made to the Notice of Appeal. The Appellant’s Amended Brief of Argument settled by Prof. Ilochi Okafor SAN was dated the 04/4/12 and filed the 05/4/12. The 1st Respondent’s Amended Brief of Argument was dated the 10/4/12 and filed the same day. The 1st Respondent filed a Notice of Preliminary Objection dated and filed the 10/4/12, and which was argued separately. The Appellant also filed a Reply to the 1st Respondent’s Notice of Preliminary Objection. It was dated the 13/4/12 and filed the 16/4/12. He also filed a Reply to the 1st Respondent’s Brief of Argument, also dated the 13/4/12 and filed the 16/4/12, the 2nd Respondent did not file any brief of argument in this appeal.
At the hearing of this appeal on the 24/4/2012, both parties adopted and relied on their said briefs of Argument as their arguments in this appeal.
Now, in arguing the appeal, the Appellant nominated four issues for determination as follows:
1) Is the lower court with jurisdiction to entertain the claim of the 1st Respondent? (Grounds 3 and 6).
2) Whether the claim of the 1st Respondent is maintainable against the Appellant after the election had been conducted to warrant his joinder in the proceedings in this suit at the court below. (Grounds 2 and 5)
3) Whether the lower court is not biased against the Appellant in the Proceedings. (Ground 4).
4) Whether the application filed by the 1st Respondent to join the Appellant into the proceedings is not an abuse of court process and the ensuing order joining the Appellant is not liable to be set aside.
The 1st Respondent on his part, nominated two issues for determination as follows:
a) Whether the learned trial court had the jurisdiction to entertain this suit including making the order joining the Appellant as the 3rd Respondent in this suit. (Ground 2).
b) Did the learned trial court rightly exercise its discretion judicially and judiciously in granting the order joining the Appellant as a party (3rd Respondent) in this suit and making the consequential orders in its ruling dated 1/2/2012 (Grounds 1, 3, 4 and 5).
As I stated earlier, the 2nd Respondent did not file any brief of argument in this appeal.
Before I proceed to the determination of the issues formulated in this appeal, I find it pertinent to point out that the 1st Respondent had filed a Notice of Preliminary objection to the hearing of this appeal. It is therefore proper that it be determined first. The Notice of Preliminary Objection was dated and filed the 10/4/2012. The Grounds for the objection are as contained at pages 2 – 3 of the Notice.
Arguing the Notice of Preliminary Objection, learned senior counsel for the 1st Respondent contended first of all, that the grounds of appeal and the particulars thereof are in gross violation of the principles of law governing how a ground of appeal should be couched. Citing the cases of OGE v. EDE (1995) 3 NWLR (pt.385) pg.564 at 582; AMEKWE v. OKEREKE (1996) 6 NWLR (Pt.452) pg.60 at 71 and GLOBE FISHING IND. LTD. v. COKER (1990) 7 NWLR (Pt.162) pg.265 at 300, learned senior counsel submitted that the law is settled that the particulars and the nature of error alleged in relation to the ground of appeal should be the specific reasoning, findings or observation in the decision or ruling in question relating to the error complained of. He then submitted that a perusal of the 6 grounds of appeal in the Amended Notice of Appeal together with their particulars will show that the Appellant was not concerned with the specific reasoning, findings or observations of the court below in the ruling appealed against. That the grounds of appeal and their particulars are more of arguments and narratives laced with criticisms against the learned trial judge. We were then urged to strike out the 6 grounds of appeal as they offend Order 6 rule 2(2) and (3) of the Court of Appeal Rules, 2011.
Learned counsel for the Appellant cited the case of ADEROUNMU v. OLOMU (2000) 4 NWLR (Pt.652) pg.253 at 265 and ODINIGI v. OYELEKE (2001) 6 NWLR (Pt.708) pg. 12 at 24 to submit that, the 1st Respondent’s contention that the Grounds of Appeal are narrative and argumentative cannot be countenanced because, the 1st Respondent has not complained that there has been a misapprehension or ambiguity in each of the Grounds complained about. That it is not in accord with the modern concept of justice to sweep under the carpet the issue of jurisdiction for the reason that the particulars of the grounds are narrative and argumentative. That in any case, taking the grounds and the particulars as a whole, they are neither narrative nor argumentative, and that the Grounds of Appeal in GLOBE FISHING IND. LTD. (supra) cited by the 1st Respondent, were found not to be relevant to the issues for determination in that appeal.
Learned Appellant’s counsel further cited the cases of NASIK v. C.S.C., KANO STATE (2010) 6 NWLR (Pt.1190) pg.253 at 275 paras. B-D; ABIODUN v. F.R.N. (2009) 7 NWLR (Pt.1141) pg.489 at 499 paras. G-H; NDUBA v. APPIO (1993) 5 NWLR (Pt.292) pg.201 at 221 and WESTERN STEEL WORKS LTD. & ANOR. v. IRON & STEEL WORKERS UNION OF NIG. & ANOR. (1986) 3 NWLR (Pt.30) pg. 617 at 628, to submit that it is not necessary to supply particular to a Ground of Appeal raising the issue of jurisdiction, as in the instant case. We were then urged to hold that, the weighty issue of jurisdiction raised cannot be undermined by the fanciful argument of the 1st Respondent.
Now, Order 6 rule 2(2) of the Court of Appeal Rules, 2011 provides that, where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. It proceeds to stipulate under Rule 2(3) of the said Order 6 that, the Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered consecutively. It is therefore clear that the Rules of this court frown at Grounds of Appeal which are not framed in accordance with the Rules. It is also obvious that the Grounds of Appeal and the particulars must rhyme, and be connected with the controversy between the parties. They must also not contain any argument or narration. See. M.B.N. PLC v. NWOBODO (2005) 14 NWLR (Pt.945) pg.379; ADAH v. ADAH (2001) 5 NWLR (Pt.705) pg. 1 and ADESANYA v. PRESIDENT OF NIGERIA (1981) 12 N.S.C.C. pg.247.
It should also be noted that grounds of appeal represent an Appellant’s complaint against the decision he is not satisfied with, and which complaint he wants an appellate court to correct or remedy. In other words the grounds of appeal convey an Appellant’s complaints against the judgment of a lower court. The particulars on the other hand highlight the complain indicated in the Grounds of Appeal and therefore illuminate same. They are therefore the illumination of the specific effort or misdirection, and further reveal how the complaint against the argument will the canvassed by the Appellant at the hearing of the appeal. A good ground of appeal must therefore be elegantly drafted, concise and straight to the point, so that as soon as it is read, it will convey to the reader the specific error and misdirection complained against. It should be such as to be easily comprehended and digested. See OBI-ODU v. DUKE (2006) 1 NWLR (Pt.961) pg.375; C.C.B. PLC v. EKPERI (2007) 3 NWLR (Pt.1022) pg.493; ABUBAKAR v. B.O. & A.P. LTD. (2007) 18 NWLR (Pt.1066) pg.319; N.R.C. v. CUDJOE (2008) 10 NWLR (Pt.1095) pg.329 and DIAMOND BANK LTD. v. P.I.C. LTD. (2009) 18 NWLR (Pt.1172) pg.67.
Since the grounds of appeal and their particulars are meant to acquaint the Respondent with the issues involved in the appeal, they should be drafted in such a way as to be clear, precise and not argumentative or narrative. In that respect, once the grounds of appeal and the particulars convey to the Respondent what the grouse of the Appellant is all about, it may not lead to the striking out of the appeal as incompetent. In any case, this court has now shifted from strict adherence to technicalities to the doing of substantial justice. See ODINIGI v. OYELEKE (2001) 2 S.C. pg.194 at 198 per Kalgo, JSC; N.R.C. v. CUDJOE (supra) at pg.394 paras. E-H and OLORUNTOBA-OJU & ORS. v. ABDUL-RAHEEM & ORS. (2009) 13 NWLR (Pt.1157) pg.83. In the instant case, it is not the case of the 1st respondent that they have been misled or that the nature of the grounds of appeal and their particulars are not comprehensible or intelligible to them. I therefore hold that the grounds of appeal and their particulars substantially satisfy the requirements of Order 6 rule 2(2) and (3) of the Court of Appeal Rules, 2011.
It is also contended by learned senior counsel for 1st Respondent that it is not in doubt that the instant appeal is an interlocutory appeal. That save for an appeal on a ground of law, an appeal against an interlocutory decision on grounds other than law, must be with leave. He then cited section 241(1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (As amended) and the case of GARUBA v. OMOKHODION (2011) 15 NWLR (Pt.1269) pg.145 at 183, to submit that, a clear perusal of the 6 Grounds of Appeal and their particulars show that, none of them is a ground of law alone. That whether or not a ground of appeal raises questions of law alone, does not depend on the label the Appellant gives to the ground in question, but involves an examination of the ground as framed together with the particulars thereof. That the wording of the ground and the relevant particulars have to be examined in order to determine whether a ground of appeal is one of law alone or mixed law and fact. The cases of OJEMEN v. MOMODU (1983) 3 S.C. pg.173; OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt.23) pg.484 and IFEDIORA v. UME (1988) 2 NWLR (pt.74) pg.1 at pg.15 paras. G-H were cited in support.
Learned senior counsel went on to submit that joinder of parties to a suit entails a deep consideration of the facts and circumstances of the suit, in that a court cannot order joinder in isolation of the facts. That it is only the facts of a case and no more that will guide and aid a trial court in determining whose presence is necessary or unnecessary so as to effectually and completely adjudicate upon the questions involved in the proceedings by virtue of Order 9 rule 14(3) of the Federal High Court (Civil Procedure) Rules, 2009. An examination of Grounds 1, 2, 3, 4, 5, and 6 together with their particulars, submitted learned counsel, will show that they required an examination of the facts on which the learned trial Judge exercised his discretion in granting the order for the joinder of the Appellant in the suit before him. That, they therefore raise issues of mixed law and facts, which require leave of court before they can be filed or argued. The cases of AJIBADE v. PEDRO (1992) 5 NWLR (Pt.241) pg.257 at 267; F.B.N. PLC. v. ABRAHAM (2008) 8 NWLR (Pt.1118) pg.171 and GARUBA v. OMOKHODION (supra) were further cited in support.
Akin to the above submission of the 1st Respondent is that, the Grounds of Appeal complain against the exercise of discretion by the trial court. It was therefore contended by the 1st Respondent that, it is the law that where a ground of appeal complains about the manner a trial court exercised its discretion, it is not a ground of law alone, but a ground of mixed law and facts. The decision of the Supreme Court in the cases of RE: THE VESSEL MV LUPEX (1993) 2 NWLR (Pt.278) pg.670 at 683; ANSA v. ISHIB (1999) 7 NWLR (Pt.610) pg.277 at 289; C.B.N. v. OKOJIE (2003) 8 NWLR (Pt.268) pg.48 at 62 and GARUBA v. OMOKHODION (supra) at 183 were cited in support. It was therefore contended that the instant appeal concerns joinder of parties to the suit, which is at the discretion of the trial court, as it is clear that the Appellant complains that the trial court did not exercise its discretion judicially and judiciously in joining him as a respondent to the suit. Learned counsel then urged us to hold that Grounds 1,2,3,5 and 6 in the Amended Notice of Appeal which complains about the lower Court’s exercise of discretion are incompetent and to have same struck out.
Learned senior counsel for the Appellant submitted that, the Grounds of Appeal complained of do not call for the evaluation of evidence on the basis of which any issue of law could be decided. He cited the cases of EJIWUNMI v. COSTAIN (W.A) PLC (1993) 12 NWLR (Pt.576) Pg. 149 at 161 and DANIEL v. FADUGHA (1998) 13 NWLR (Pt.582) pg.482 at 492 to submit that, it is not in dispute that the court below made findings in his Ruling, which finding has been reproduced at paragraph 1.03 of his brief. That the legal consequences that should flow from that finding is that the court below should have declined jurisdiction to entertain the suit. That none of the parties to this suit have appealed against that finding as it was amply supported by undisputed facts brought to the fore by the 1st Respondent in his affidavit of the Application for Judicial Review and the affidavit in support of the motion for joinder. He further submitted that, the Appellant was therefore right in formulating Grounds of Appeal contending that the trial court should have declined jurisdiction to entertain the matter and to join Dr. Andy Uba into the proceedings, having found that the subject matter of the action is as to which list of candidates should have been used for the election.
Learned counsel for the Appellant therefore submitted that, in the instant case, the facts are not in dispute, all that the court below was required to do, was to find whether those facts taken as proved support the joinder of the Appellant. He then submitted that the crux of the Appellant’s case is that, taking the facts as disclosed in the Application for Judicial Review, the motion for joinder and the exhibits attached thereto, and the finding of the lower court thereon as to what the res in the matter was, the trial court had no jurisdiction to entertain the suit. That in the instant appeal, the findings of facts by the court is not being challenged, nor is the Appellant calling on this court to review the correctness of those findings made on those facts. We were accordingly urged to hold that the Grounds of Appeal are not on mixed law and facts.
It is further submitted by learned counsel for the Appellant that, the Grounds of Appeal complained of do not call upon this court to review the exercise of the discretion of the court below. That the contention of the 1st Respondent that the application before the court below was that for joinder, and therefore call for the exercise of the court’s discretion or for us to review the exercise of the lower court’s discretion, is nothing but diversionary. It was then submitted by learned counsel that, the complaint of the Appellant in those Grounds of Appeal is that the finding or Ruling of the trial court show clearly that the court had no jurisdiction to entertain the matter. That it is clear from the decision in the case of WESTERN STEEL WORKS LTD & ANOR v. IRON & STEEL WORKERS UNION OF NIG. & ANOR (supra) at pg.627-628, that where objection to jurisdiction of an inferior court appears on the proceeding, it is immaterial by what means and by whom the court is informed of such objection. He then contended that, when it becomes apparent that the subjection matter in dispute relates to primary election, and as to which of the list of candidates is to be used for the election, the Appellant had a duty to point it out to the court that it had no jurisdiction to entertain the matter, the fact that the issue before the court was for joinder cannot form the basis for contending that the Appellant’s Grounds of Appeal necessarily involve exercise of discretion or call upon this court to review that exercise of the Lower Court’s discretion.
Now, it is the constitutional right of every party to any proceeding, whether civil or criminal, to appeal against any decision of the trial court or appellate court (as in the case of Court of Appeal) with which he is dissatisfied. That right is donated by the Constitution. The right of appeal is however governed by the provisions of Section 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in the case of an appeal to the Court of Appeal from the final or interlocutory decisions of the Federal and State High Courts. For the purpose of this appeal, I will restrict myself to the provisions of Sections 241(1) (a) and (b), and 242 of the 1999 Constitution (supra). To enable me follow the issue better, I find it pertinent to produce those provisions below. By those provisions, it is provided that:
“241(1). An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following instances:
(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;
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 leave of the Federal High Court or that High Court or the Court of Appeal.”
It is therefore clear that by Section 241(1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria, an appeal will enure to an Appellant from the decision of the Federal or State High Court in any final decision of that court where the issue involves question of law, irrespective of whether the decision is final or interlocutory. Thus, by Section 241(1) of the 1999 Constitution, where an appeal against an interlocutory decision of the High Court involves question of law simplicitcr, the appeal will be as of right. However, where the grounds of appeal raise questions of fact or mixed law and fact, then by virtue of Section 242(1) of the Constitution (supra), leave of either the High Court or of the Court of Appeal must be sought and obtained. See SARAKI v. KOTOYE (1992) 9 NWLR (Pt.264) pg.156 at 187; N.P.A v. EYAMBA (2005) 1 NWLR (Pt.906) Pg. 60; GBASHA LOVEBET (NIG) LTD (2005) 15 NWLR (Pt.949) Pg. 551 at 574-575. It is not in dispute that the instant appeal is on an interlocutory decision or order of the Federal High Court. The question now is, whether the grounds of appeal contained in the Notice of Appeal are on questions of law simpliciter, facts or mixed law and facts.
The Supreme Court and indeed this court have reiterated the difficulty encountered in drawing a distinction between law simplicter and mixed law and facts. The issue whether its on the facts alone is easier to discern, but it has been recognized that the distinction between law simpliciter and mixed law and facts is a very thin one. However, it has been accepted that, in drawing a distinction between the two, the court is required to examine thoroughly the grounds of appeal and the particulars, so as to see whether the grounds reveal a misunderstanding by the lower court of the law or a mis-application by the court of the law to the facts already proved or admitted. In that case, it will be a question of law. However, where the issue requires questioning the evaluation of the facts by the lower court before the application of the law, it will be a question of mixed law and facts. A ground of mixed law and facts cannot be converted into a ground of law by simply so branding it “error of law” or “misdirection in law.” See A.C.B v. OBMIAMI BRICK & STONE (1993) 5 NWLR (Pt.294) Pg. 399; EZEOBI v. ABANG (2000) 9 NWLR (Pt.672) Pg. 230 at Pg.241-242; KENNEDY v. INEC (2009) 1 NWLR (Pt.1123) Pg. 614; ONONUJU v. A.G; ANAMBRA STATE (2009) 10 NWLR (Pt.1148) Pg.182; NWABUEZE, v. NIPOST (2006) 8 NWLR (Pt. 9S3) pg. 480 and DIAMOND BANK LTD v. P.I.C LTD (2009) 18 NWLR (Pt.1172) Pg.67. See also CHIEF IKECHI EMENIKE v. PEOPLE DEMOCRATIC PARTY unreported Appeal No: SC.443/2011 delivered on the 25th day of May, 2012 at Pg.31 per Fabiyi; JSC.
In the consideration and determination on this issue, I find it pertinent to point out that the subject matter of this appeal is on the order of the Federal High Court sitting at Umuahia, wherein the Appellant was joined in the Application for Judicial Review filed by the 1st Respondent before it. It is against that order joining him as a Respondent in that suit that the Appellant has filed the instant Appeal. The substantive matter for judicial review is therefore still pending before the lower court. That court made the order joining the Appellant as Respondent in the suit before it, pursuant to the powers granted it by Order 9 rule 14(3) of the Federal High Court (civil procedure) Rules, 2009 which stipulates that:
“A judge may order that the name of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings, be added.”
The word used there is “may” which generally connotes permission. Accordingly the trial court has some latitude or discretion to exercise in the decision whether or not to join any person or party in the proceedings before it. In other words, by the use of the word “may” in Order 9 rule 14(3) (supra) the decision whether to add or join any party to a proceeding is within the ambit of the exercise of his discretionary powers. The law as it is now is that, in an interlocutory appeal, where the ground of appeal is a challenge against the exercise of the trial court’s discretion, a ground of appeal framed against the exercise of such discretion is a ground of mixed law and facts, and leave of court would be required before such ground of appeal and of course the notice of appeal and will be competent. The rationale for this rule was captured by Galadima; JCA (as he then was) in the case of- EKWULUGO v. A.C.B (NIG) LTD, (2006) 6 NWLR (Pt.975) pg.30 at pg. 41 Para. C, where His Lordship held that:
‘It seems to me too, that discretion is exercised by a court in the con of certain circumstances parties have placed before the court. Where the exercise of the discretion is challenged before an appellate court, is bound to look at the surrounding circumstances so as to determine whether the lower court exercised the discretion judiciously or arbitrarily. In that case, I am of the view that such questions necessarily raise issues of mixed law and fact.”
Similarly, Salami, JCA (as he then was) in INVESTOR INT’L (LONDON) LTD v. F.B.N PLC (2008) 10 NWLR (Pt. 1096) Pg. 427 at 441 Para. H., stated as follows:
“Be that as it may, an exercise of discretion respectfully can only be challenged by a ground of fact or at best mixed fact and law since it involves consideration of facts which the court failed to take into account or what it should do and failed to do. The present appeal is an attack on exercise of discretion by the learned trial judge the ground certainly must be of fact or, at best, of mixed law and fact.”
It therefore means that where there has been an exercise of discretion by a trial court, which is challenged on appeal, the impression an appellate court, with all respects, have is that, the way and manner or the principles upon which the trial court exercised its discretion, was not judicial and judicious. In that case, it would be a question of fact or mixed law and fact. See also MADUABUCHUKWU v. MADUABUCHI (2006) 10 NWLR (pt.989) pg.475; CHIEF OF DEFENCE STAFF v. ADHEKEGHA (2009) 13 NWLR (Pt.1158) pg.332 and GBASHA v. LOVEBET (NIG.) (supra) at pg.575.
Learned counsel for the Appellant however contends that the Grounds of Appeal filed by the Appellant do not challenge the exercise of discretion by the learned judge. That rather it is his submission that from the ruling or finding of the learned trial Judge, it is apparent that, the trial court had no jurisdiction to entertain the application for judicial review, which is the substantive matter before it. It should however be noted that the decision appealed against is on the Ruling of the trial court where it made an order, joining the Appellant as a Respondent in the said Application for judicial. To arrive at a decision whether to join the Appellant or not, the trial court reviewed or evaluated the affidavit evidence deposed to by the parties in that application for joinder. This is even admitted by the learned senior counsel for the Appellant when he submitted at page 8 paragraph 1.18 lines 12-17 of his Reply to the 1st Respondent’s Preliminary Objection as follows:
“The crux of the Appellant’s Grounds of Appeal on this score is, taking the facts disclosed in the Application for Judicial Review, the Motion for Joinder and the exhibits attached thereto, and most importantly the Ruling and finding of the court below as to what was the res in the case, could it be right to say that the court below had jurisdiction to entertain the matter?” (Underlined for emphasis).
It is apparent from the above submission of learned counsel for the Appellant that before the trial court made its findings, the facts as disclosed in the Application for judicial Review, the affidavit in support of the motion for joinder and the exhibits annexed thereto were evaluated or reviewed. Those were certainly findings of fact before the application of the discretion of the trial court whether or not to grant the motion for joinder. The law is certain that when a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and facts.
A cursory reading of the Grounds of Appeal and their particulars would tend to show that the Appellant raised issues of abuse of judicial process, the legal capacity of the Appellant to be sued, locus standi of the 1st Respondent, bias of the learned trial judge etc. The Appellant then contends that all these issues touch on the jurisdiction of the trial court to entertain the suit. The law however is that Grounds of Appeal are not determined on what the Appellant terms them to be. In other words, it is not material that an Appellant called his Grounds of Appeal as that of law, fact or mixed law and fact, for what an appellate court would do is to read the particular ground or grounds of appeal together with the particulars as a whole in order to determine the issue.
Learned Appellant’s counsel did contend that the issues in the Grounds of Appeal concern or affect the jurisdiction to entertain the suit. I think a distinction should be made between the jurisdiction of the lower court to hear the substantive application for judicial review and the motion for joinder. It is not contended by the Appellant that the trial court had no jurisdiction to entertain the motion for joinder, but that the trial court wrongly joined the Appellant to the action for judicial review, in view of its findings based on the facts submitted in the Application for judicial Review and the affidavit in support of the motion for joinder. The impression I have therefore is that the Appellant is not satisfied with the way and manner the trial court exercise its discretion to join him into the Application for Judicial Review, in view of his findings in respect of the motion for joinder. Those findings are certainly not findings based on the law, but on the facts available to the court at the time of exercising its discretion to join the Appellant. The fact that the Appellant craftily drafted his grounds of appeal so as to wrap in certain issues of law, does not derogate from the fact that, those issues are directed at the order of the trial court granting the order of joinder of the Appellant to the Application for Judicial Review. Be that as it may, it is my view that the findings and conclusions of the learned trial Judge was in the exercise of his discretion and can only be challenged on grounds of fact or at best mixed law and facts. Furthermore the contention of the Appellant in Grounds 1, 2, 3, 5 and 6 of the Amended Grounds of Appeal is that the learned trial judge ignored certain circumstances that would in law have assisted it in determining whether or not to grant the order of joinder, are obviously issues based on the facts as disclosed before the trial court.
It is therefore my finding in this appeal that the Grounds of Appeal and particulars in support thereof are certainly complaints on the exercise of the trial court’s discretion. The issues of abuse of process, locus standi and incapacity of the Appellant to be sued are not necessarily issues of jurisdiction per se. Though a finding on them may have a collateral effect on the competence of the Application for Judicial Review, and thus jurisdiction of the trial court to entertain same, they are not issues to be entertained on the issue of joinder of the Appellant, which is the subject of this appeal. Any finding thereon has to do with the facts and the principles of law applicable thereon. They are therefore issues of mixed law and facts.
On Ground 4 which complains on the issues of bias of the learned trial Judge, I am of the view and on the authorities that, an allegation of bias or likelihood of bias is a question of inference to be drawn from the facts. Accordingly, where a Ground of Appeal is a question of inference to be drawn from the available facts before the court, it is not even an issue of mixed law and facts but a question of fact simpliciter. See ALIMI v. OBAWOLE (1998) 6 NWLR (Pt.555) pg.591 at 614 and IKOMI v. AGBEYEGBB 12 WACA pg.379. It is therefore clear that Ground 4 of the Appellant’s amended Notice of Appeal raises a question of fact. Similarly Grounds 1, 2, 3, 5 and 6 of Amended Notice of Appeal raise questions of mixed law and facts.
As stated earlier in the course of this judgment, this appeal is from an interlocutory decision of the lower court. Accordingly, by section 242(1) of the 1999 Constitution (supra) the Appellant ought to have sought for and obtain the leave of the lower court or of this court before filing of the Appeal. In other words, since the appeal is against the interlocutory decision of the lower court, and also raise questions of fact, and mixed law and facts, leave ought to be shown to have been obtained. In the instant case, since the appeal was found to be of mixed law and facts and of facts alone, leave of either the trial court or of this court ought to have been sought and obtained, since the decision appealed against was an interlocutory decision of the Federal High Court. See GBASHA v. LOVEBET (NIG.) LTD. (supra) at pp.575 paras. B-E.
Now, the law is that where the constitutionally prescribed or required leave to appeal was not obtained in any given case, by an Appellant, such an appeal is regarded as incompetent and therefore invalid. This is so because, an appeal like any other originating process can only be competent when it comes before the court by due process of law and upon fulfillment of any condition precedent to its competence. That being so, an appeal which requires leave of court, and such leave is not obtained is incompetent and ought to be struck out. See INVESTORS INT’L (LONDON) LTD. v. F.B.N. PLC. (supra) at pp.442-443 paras. H-A; AMADASUN v. UME (2007) 13 NWLR (Pt.1051) pg.214 and OBI-ODU v. DUKE (supra).
In the circumstances, I hereby hold that Grounds 1, 2, 3, 4, 5 and 6 of the Appellant’s Amended Notice and Grounds of Appeal are incompetent and are accordingly struck out. Having thus found, there is no other ground upon which to hang this appeal. Notice of Appeal without Grounds is no appeal at all. It is totally incompetent. The logical conclusion is that, this appeal is incompetent and invalid. It is therefore struck out.
On the whole therefore, I hold that the Preliminary Objection succeeds to the extent that the Grounds of Appeal raise questions of mixed law and facts or facts, and leave of the lower court or of this court not having been first sought and obtained, being an interlocutory appeal, the appeal is incompetent. The Preliminary Objection having succeeded, the appeal is hereby struck out.
There shall be fifty thousand Naira (N50,000.00) as costs against the Appellant in favour of the 1st Respondent.
UWANI MUSA ABBA AJI, J.C.A.: I was privilege to read before now the judgment of my Learned brother M. Tsammani, JCA just delivered.
I agree with the reasoning and conclusion of my learned brother that the preliminary objection by the Respondent succeeds and it is allowed. Consequently, the appeal is incompetent and it is hereby struck out.
I endorsed the consequential order as to costs.
MOJEED A. OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother HARUNA M. TSAMMANI, JCA.
I agree with the reasoning and conclusion. I also abide with the consequential orders.
Appearances
A. O. Okafor, SAN (with T. I. Mordi; Esq. C. S. Okafor (Mrs.) and P. JU. Okoli; Esq.) For Appellant
AND
P. I. N. Ikwueto; SAN (with Ejike Efobi; Esq.) for the 1st Respondent.
Ben Osaka; Esq. for the 2nd Respondent. For Respondent
