DR. UCHECHUKWU SAMPSON OGAH v. CHIEF IKECHI EMENIKE & ORS
(2019)LCN/12602(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2019
CA/A/48/2019
RATIO
COURT AND PROCEDURE: WHEN A CASE IS ADJOURNED
“The law is clear as daylight. When a party is not in Court and an adjournment is made, the adjourned date must be communicated to the absent party, usually by means of a hearing notice as the Court will have no jurisdiction to proceed in his absence HABIB Vs. OPOMULERO (2000) 15 NWLR (Pt. 690) 315; TSOKWA MOTORS (NIG) Vs. U.B.A(2008) 2 NWLR (Pt. 1071) 347; LEADERS Vs. BAMAIYI (2010) 18 NWLR (Pt. 1225) 329 and DARMA Vs. ECOBANK NIGERIA LTD (2017) 9 NWLR (Pt. 1571) 489. It is the duty of the trial Court, to ensure that there was service of hearing notice on an absent party before proceeding. The duty is on the Court, not the Registrar of the Court and the Court should normally call for proof of service to ensure there was service and put it in record. Anything short of this, is a dereliction of duty. There is nothing at page 160 of the record, to show that the trial judge demanded to see proof of service on the applicant, for joinder, before he dismissed the applicant. Simply because the applicant and his counsel were not in Court, is no proof that they had been served and were aware of that date. As it turned out they were not served and were only “schemed out” of the proceedings.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
DR. UCHECHUKWU SAMPSON OGAH Appellant(s)
AND
1. CHIEF IKECHI EMENIKE
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the judgment of the High Court of the Federal Capital Territory (FCT) presided over by Honourable Justice Ogbonnaya, K. N, delivered on the 29th of November 2018 in Suit No. FCT/HC/CV/3097/18.
The 1st respondent in this appeal, was the plaintiff at the High Court of the Federal Capital Territory, Abuja (the trial Court) and in his Originating Summons filed on the 22nd of October 2018, he prayed for reliefs that were granted by the trial Court. The appellant was not made a party in that Suit. The germane reliefs the 1st respondent prayed for are: –
a. A DECLARATION that having regards to the subsisting Order made by Justice C. V Okorafor on 8th March 2018 in Suit No. HIN/4/2018 – Barr. Fabian Okonkwo and 2 Ors Vs. APC & 5 Ors, the Abia State Chapter of the 1st defendant led by Dr. Emmanuel Ndukwe as Chairman and Chief Chidi Avaja as Secretary, is the authentic leadership of the party in the State.
b. A DECLARATION that the 1st defendant has no discretion to refuse, reject and/or neglect to act on the list of candidates forwarded to it, for onward transmission to the 2nd defendant, by the Dr. Emmanuel Ndukwe led Abia State Chapter of the party.
c. AN ORDER compelling the 1st defendant to forward the name of the plaintiff being the winner of the governorship primaries conducted by the party in Abia State on 30th September, 2018 to the 2nd defendant as the Abia State governorship candidate of the APC in the forth coming Governorship elections.
d. AN ORDER compelling the 2nd defendant to list the name of the plaintiff, being the winner of the governorship primaries conducted by the party in Abia State on the 30th September 2018, as the Abia State governorship candidate of the APC in the forth coming Governorship elections.
The trial Court granted all the reliefs. Whilst the case was going on at the trial Court, the appellant herein, who said he participated in a primary election conducted on the 2nd of October 2018, by the National Executive Committee of the 2nd respondent, and won, had his name forwarded by the 2nd respondent to the 3rd respondent as the governorship candidate of the 2nd respondent in the forth coming elections, and that the 1st respondent took part in that primary election but lost. The 1st respondent commenced the Suit on 22nd October 2018, without stating he participated in the said primary election, and without joining the appellant.
When the appellant became aware of the Suit at the trial Court on 14th November 2018, he filed an application before that Court on 15th November 2018, to be joined as an interested party. There were 2 adjournments and after that, the trial Court on 29th November 2018, sat without a hearing notice served on the appellant as applicant then, and dismissed his application for default of appearance. After dismissing the application, the Court heard the substantive Suit and granted all the reliefs prayed for. Being dissatisfied, the appellant filed this appeal.
In the appellant’s brief filed on 22nd of January 2019, learned Senior counsel Erokoro SAN, identified two issues for determination. They read: –
1. WHETHER THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA HAD JURISDICTION TO ENTERTAIN THE SUIT.
2. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT DISMISSED THE APPELLANT’S APPLICATION FOR JOINDER AND REFUSED TO HEAR THE APPLICANT.
The 1st respondent’s brief was filed by Mr. Ujah on 25th January 2019, which incorporated arguments on the Preliminary Objection, the Notice of which was filed on 25/1/19. The grounds of the Objection are:
a. By the combined effect of Sections 243(1)(a) and 285 (11) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Honourable Court cannot extend the time for the appellant to appeal as a person interested against the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 29th November 2018, outside the fourteen days proscribed.
b. That the order of extension of time granted by this Honourable Court for the appellant to appeal as a person interested against the judgment delivered by the High Court of the FCT on 29th November 2018 outside fourteen days was granted without jurisdiction in view of the express provision of Section 285(11) of the Constitution as amended by the Fourth Alteration Act No 21 of 2017.
c. This appeal is incompetent and an abuse of Court process.
In respect of this preliminary Objection, learned counsel submitted that the appellant needed leave, by Section 243 of the Constitution, before he can file the appeal; and further, that this Court extended the time for the appellant to appeal which it has no jurisdiction to do, as the time is within 14 days. He referred toAGIP (NIG) LTD Vs. AGIP PETROLEUM INTERNATIONAL (2010) 5 NWLR (Pt. 1187) 348; NABORE PROPERTIES LTD Vs. PEACE COVER (NIG) LTD (2015) 2 NWLR (Pt.1444) 440 and ANPP Vs GONI (2012) 7 NWLR (Pt. 1298) 147 AT 182 ? 183. Since leave was not obtained before filing the Notice of Appeal, the notice is incompetent he argued, and should be struck out.
There is a misrepresentation of facts by the Preliminary Objector. He alleged that this Court granted “leave” to the appellant to “appeal out of time” and that we granted him ‘extension of time to appeal as an interested person. This is fallacious. This Court did not do these things and it is incumbent upon the applicant and his counsel, to have obtained the Ruling of the Court on that date before commencing the allegation. This Court did not grant the application of the appellant as prayed. The orders made are:-
“Court: The appellant Dr. Uchechukwu Sampson Ogah, is given leave to appeal the Ruling and judgment of the High Court of the Federal Capital Territory Abuja delivered on the 29th of November 2018 in Suit No. FCT/HC/CV/3097/18. Leave is granted to the applicant to appeal the said judgment, as an interested party in terms of the Notice of Appeal filed at the Registry of the High Court of the FCT. The respondent have up to 28/1/19 to file their briefs. Adjourned to 29/1/19 for hearing”
From the above, this Court never stated that it was granting extension of time to the appellant to ?appeal out of time”. There is a world of difference between what the Court ordered, and the construction put upon the Order by the Objector.
Learned counsel for the Objector has submitted that the appellant needed leave before he filed the appeal. We need to point out that the appellant did not infact need “leave” before he could file his Notice of Appeal. This is because Section 243 of the 1999 Constitution upon which the Objector relied, is a general provision for appeals with leave. So the case of AGIP (NIG) Vs. AGIP INTERNATIONAL (SUPRA) relied upon, is in respect of appeals in general. It is the Fourth Alteration Act No 21 of 2017 that made specific provisions for pre-election matters, the time for filing, time for appeal and time for dispositions by the various Courts. This specific provision, which is later in time than Section 243 of the 1999 Constitution, is the applicable law to this appeal as it is on the specific subject of pre-election appeals, and is sui generis. In Section 285 (11) of the 4th Alteration Act, it is provided that: –
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
The above simply means that an aggrieved person can file the appeal within 14 days of the date of judgment. There is nothing about “leave” in that sub-section before the appeal is filed as that is the ambit of Section 243 of the 1999 Constitution. In that vein therefore, the appellant did not require leave to appeal the decision of the High Court of the FCT. All he was mandatorily required to do, was to file the appeal within 14 days.
The decision of the trial Court was delivered on the 29th of November 2018. He filed the appeal on the 12th of December ‘2018.
He had thus filed it within the stipulated 14 days required.
It is of no moment that he obtained leave later. Therefore, the application for leave to appeal, and the Order of this Court granting him that leave, were mere surplasage. It did not add any value to that extent. The Preliminary Objection therefore has no merit and it is discountenanced.
On the appeal, Issue 1 is :
Whether the High Court of the Federal Capital Territory Abuja, had jurisdiction to entertain the Suit.
Learned counsel for the appellant submitted that as the action filed by the 1st respondent, concerned the primary election conducted in Abia State, the trial Court had no jurisdiction to hear and determine it, since it is outside the Federal Capital Territory. ATAGO Vs. NWUCHE & 2 ORS (2017) 1 NWLR (Pt. 1545) 153 and SECTION 255 (1) of the 1999 Constitution as amended.
Counsel also referred to Section 285 (9) of the Constitution as amended and submitted that as the action was filed seven days outside the 14 days allowed, the action was statute-bared. He urged us to so hold.
In a response, learned counsel for the 1st respondent submitted that the issue of territorial jurisdiction of the trial Court was not canvassed at the trial Court, and being a fresh issue, leave is required ? SAPO Vs. SUNMONU (2010) 11 NWLR (Pt. 1205) 374.
The issue of territorial jurisdiction of the trial Court to adjudicate on the Suit, is a jurisdictional issue which can be raised at any forum, even in the Supreme Court for the first time, without leave. It can be raised orally. It can even be raised suo motu by the Court itself for counsel to address on it ?SHELIM Vs. GOBANG (2009) 12 NWLR (Pt. 1156) 435 at 460. The Issue of territorial jurisdiction has been competently raised and can be determined by this Court. The appellant did not need leave to raise it. At any rate, the trial Court tried the Suit and determined it. It gave a decision. So this Court can look at that decision, especially as to its jurisdiction to entertain it.
The primary election, the subject of the Suit at the trial Court, was conducted in Abia State. This is not controverted. The action was instituted at the High Court of the Federal Capital Territory, which has no territorial jurisdiction over actions conducted in Abia State by virtue of Section 255 (1) of the 1999 Constitution as amended. See the case of MAILANTARKI Vs. TONGO & OR (2018) 6 NWLR (Pt. 1614) 69 at 88 ? 86 and the judgment of this Court delivered yesterday (28th January 2019) in a sister appeal, i.e. on the same judgment as the one under consideration in this appeal.
Again, the action was filed on the 22nd of October 2018 on an event (the primary election) which took place on 30th September 2018. This was outside the 14 days allowed by the 4th Alteration Act No. 21 of 2017, an amendment to the 1999 Constitution. The action was filed out of time. The trial Court had no jurisdiction to entertain it. All the proceedings, and the judgment are a nullity and are struck out. Issue No. 1 is answered in favour of the appellant and against the 1st respondent.
ISSUE 2
Whether the trial Court was right when it dismissed the appellant’s application for joinder and refused to hear the appellant.
We have read and considered the briefs of the appellant and the 1st respondent on this Issue. The main complaint there, is that the appellant as applicant, was not served with a hearing notice to move his application and the application was dismissed for default of appearance. He alleged that the right of the applicant to fair hearing was breached.
In his response, learned counsel for the 1st respondent submitted in the main, that since counsel agreed, especially appellant’s counsel who agreed to be in Court on 29th of November 2018, there was no need to serve him with a hearing notice. When he refused to appear, it was his fault and so there was no breach of right to fair hearing – JONASON TRIANGLES Vs. CHARLES MOH LTD (2002) 15 NWLR (Pt. 789) 176.
We have looked at the record, since the 1st respondent has not stated the date when counsel for the appellant (applicant in the Motion for joinder) agreed to be in Court on 29/11/2018. Page 158 of the record is what transpired on the 14/11/18. Therein, it is indicated that there is a Motion for joinder by Ogah (i.e. the applicant for joinder). There is no record that the motion for joinder was moved. Instead, at page 159 of the record of the same 14/11/18, the Court asked counsel who filed a Preliminary Objection to move it. It was not moved. Thereafter, there is no record of what happened until the 29th November 2018 when the motion for joinder was dismissed (page 160 of the record). There is therefore nothing before this Court, to substantiate the submission of counsel for the 1st respondent, that counsel for the appellant had agreed to be in Court on 29th November 2018. Where was this agreement made? There is no evidence of it.
On the other hand, learned counsel for the appellant submitted that neither the appellant nor his counsel was served with any hearing notice to appear for the application on 29th November 2018.
The law is clear as daylight. When a party is not in Court and an adjournment is made, the adjourned date must be communicated to the absent party, usually by means of a hearing notice as the Court will have no jurisdiction to proceed in his absence HABIB Vs. OPOMULERO (2000) 15 NWLR (Pt. 690) 315; TSOKWA MOTORS (NIG) Vs. U.B.A(2008) 2 NWLR (Pt. 1071) 347; LEADERS Vs. BAMAIYI (2010) 18 NWLR (Pt. 1225) 329 and DARMA Vs. ECOBANK NIGERIA LTD (2017) 9 NWLR (Pt. 1571) 489.
It is the duty of the trial Court, to ensure that there was service of hearing notice on an absent party before proceeding.
The duty is on the Court, not the Registrar of the Court and the Court should normally call for proof of service to ensure there was service and put it in record. Anything short of this, is a dereliction of duty. There is nothing at page 160 of the record, to show that the trial judge demanded to see proof of service on the applicant, for joinder, before he dismissed the applicant. Simply because the applicant and his counsel were not in Court, is no proof that they had been served and were aware of that date. As it turned out they were not served and were only “schemed out” of the proceedings.
We cannot say it enough; trial judges must ensure justice and fairness in proceedings before them. It is a cardinal principle of justice that a party is given an opportunity to be heard before an adverse Order may be made against him. Anything short of that is a travesty of justice. The applicant/appellant was denied fair hearing when his application was dismissed for default of appearance, when there was no proof of service before the Court, that he or his counsel had been served. There is also nothing to show that counsel for the applicant agreed to be in Court on 29th November 2018. Issue 2 is resolved in favour of the appellant and against the 1st respondent.
This appeal therefore has merit and it succeeds. It is allowed. The proceedings and judgment of the trial Court in Suit No. FCT/HC/CV/3097/2018 are a nullity and are struck out. N75,000 costs to the appellant against 1st respondent only.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Paul Erokoro, SAN with him, Chijoke Udeogu and Darlington OzorumbaFor Appellant(s)
I. K Ujah for the 1st respondent.
2nd respondent absent.
Yemi Pitan for the 3rd respondentFor Respondent(s)
