HON JUSTICE T. A. OYEYEMI (RTD) & ORS V. HON TIMOTHY OWOEYE & ANOR
(2012)LCN/5677(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2012
CA/AK/31M/2011
RATIO
PARTIES: PARTIES ARE BOUND BY THE RECORDS OF THE COURT
Now, parties are bound by the records of the Court, Gonze (Nig) Ltd v NERDC (2005) 13 NWLR (pt 943) 643,646; Odiase v Agho (1972) 1 All NLR (pt 1) 170; Folorunsho v Adeyemi (1975) 1 NMLR 128; Balogun v Adejobi (1995) 2 NWLR (pt 376) 131 etc. Thus, what emerges from this finding, which has not appealed against, is that the defendant/respondent filed a Notice of Withdrawal of the said appeal. However, the said notice was not served on the claimant/first respondent.PER CHIMA CENTUS NWEZE, J.C.A.
NOTICE OF WITHDRAWAL: WHETHER FILING AND SERVING A NOTICE OF WITHDRAWAL OF APPEAL AUTOMATICALLY DISMISSES THE APPEAL
In our humble view, then, the principle of law, eloquently, stated in Ezomo v AG, Bendel State (supra) is unavailing to the appellants in this appeal. The decision in Ezomo v AG, Bendel State (supra) and a host of others, such as Edozien v Edozien (supra) speak to the indispensability of service as a basic desideratum for the validity of a Notice of Withdrawal of Appeal. Thus, it is only where a notice of withdrawal has been filed and served on the respondents that the appeal in question is deemed, automatically, dismissed, Ezomo v AG, Bendel State (supra); Edozien v Edozien (supra).
The decisions in Dingyadi v INEC (No 1) [2010] 18 NWLR (pt 1224) 1; (2010) LPELR -SC.32 (R2) and Dingyadi v INEC (No 2) (2010) 18 NWLR (pt 1224) 154; (2010) LPELR -SC.32 (R), also, emphasize the indispensability of service for the efficacy of such Notice of Withdrawal; also, Adeogbo v Yusuf (1990) 6 NWLR (Pt.158) 588.PER CHIMA CENTUS NWEZE, J.C.A.
SERVICE: IMPORTANCE OF PROOF OF SERVICE ON A PARTY
It is, indeed, an affront to the proposition well-settled in cases like Olorunyolemi v Akhagbe (2010) 8 NWLR (pt 1195) 48, 80; Habib Nig Bank Ltd v Wahab Opomularo and Ors (2000) 15 NWLR (pt 690) 315.
The rationale of these binding authorities is that even if a party is in court, there must be actual proof of service on him. This can only be done by showing his signature personally, or that of his counsel, on the process or by an affidavit of service sworn to by the person who effected service.As shown above, there was no appeal against the above finding of the lower court with respect to non-service of the said notice on the claimant. As such, the court’s findings would be deemed to have been accepted, Ime Umanah v Victor Attah (2006) 9 KLR (pt 226) 3393, 3417.PER CHIMA CENTUS NWEZE, J.C.A.
COURTS: THE DUTY OF COURTS TO DETERMINE ALL ISSUES PLACED BEFORE THEM
After all, it is the duty of all courts to determine issues placed before them. Thus, a court would have failed in its duty where it failed to do so, Irole v Uka [2002] 14 NWLR (pt 786) 195, 225.PER CHIMA CENTUS NWEZE, J.C.A.
THE ATTITUDES OF THE COURTS WHEN ITS PROCESSES ARE TO BE USED AS MERE SUBTERFUGES
Above all, it has long been settled on the authorities that a court would not hesitate to invoke its disciplinary powers to prevent its processes from being used as a mere subterfuge.PER CHIMA CENTUS NWEZE, J.C.A.
SELF HELP: PARTIES MUST AVOID THE USE OF SELF HELP ONCE THEIR MATTERS ARE IN COURT
Thus, once parties have turned their dispute over to the courts for determination, the resort to self-help must end. Thenceforth, it would not be permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness. Indeed, a court would always look with askance at any disingenuous approach which may give the impression that it is being used as a mere subterfuge to tie the hands of one party while the other party helps himself extra-judicially.
Both parties are expected to await the result of the litigation and the appropriate order of court before acting further. As such, it is a reprehensible conduct for any party to an action or appeal, pending in court, to proceed to take the law into his hands without any specific order of the court and to do any act which would pre-empt the result of the action.
The courts frown against such a conduct and would always invoke their disciplinary powers to restore the status quo, Registered Trustees, Apostolic Church v Olowoleni (1990) 6 NWLR (pt 158) 514; Combined Trade Ltd v A.S.T.B. Ltd. (1995) 6 NWLR (pt. 404) 709; Ezegbu v. F.A.T.B. Ltd. (1992) 1 NWLR (pt.220) 699.PER CHIMA CENTUS NWEZE, J.C.A.
PARTIES: PROPER PARTIES: THE IMPORTANCE OF PROPER PARTIES IN A SUIT
In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the party claiming to be a proper party to the action instituted by the plaintiff is joined, see, for example, O. K. Contact Point Holdings Ltd v progress Bank (Nig.) plc and Anor [1999] 5 NWLR (pt 604) 631, 634; AG, Federation v Ajayi (2000) 12 NWLR (pt 682) 509; Bello v INEC [2010] All FWLR (pt 526) 397, 444.PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. HON. JUSTICE T. A. OYEYEMI (RTD)
2. CHIEF REMI ALABI
3. CHIEF BAMIDELE ISOLA
4. BARRISTER E. OGUNJUYIGBE
5. HON. A. GBOLAGADE
6. ALHAJI R. ADEGBILE
7. SURVEYOR A. OGUNOLA
(CHAIRMAN AND MEMBERS OF OSUN STATE INDEPENDENT ELECTORAL COMMISSION) Appellant(s)
AND
1. HON. TIMOTHY OWOEYE
(FOR AND ON BEHALF OF OTHER MEMBERS OF ACTION CONGRESS IN THE OSUN STATE HOUSE OF ASSEMBLY)
2. OSUN STATE HOUSE OF ASSEMBLY Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): Sometime in March, 2009, the Governor of Osun State appointed the first-seventh appellants as Chairman, Secretary and Members, respectively, of the Osun State Independent Electoral Commission (OSSIEC). Their names were forwarded to the defendant/respondent for confirmation.
On March 24, 2009, the appellants appeared before the defendants/respondents for screening for the purpose of confirming their said appointments. It appears that some of the appellants did not supply the defendant/respondent with enough copies of their credentials. That notwithstanding, by majority votes of its members, the defendant/respondent confirmed their appointments. The Governor, subsequently, swore them in on April 3, 2009.
The claimant/first respondent was dissatisfied with the procedure which the defendant/respondent adopted in confirming the appointments of the appellants. This prompted the action he commenced by way of Originating Summons in Suit No: HOS/M41/2009 – Hon Timothy Owoeye v Osun State House of Assembly. In its judgment of February 25, 2010, the lower court [Coram Falola, J.] favoured him with the three reliefs he claimed.
Aggrieved by that judgment, the defendant/respondent appealed. It also beseeched the lower court with an application for an order for stay of execution of the said judgment. In addition, it, subsequently, gave notice of the withdrawal of the appeal. Thereafter, fresh invitations were issued to the appellants in March 2010 to appear before the defendant/respondent for a fresh screening and confirmation exercise. On March 30, 2010, the defendant/respondent, by majority votes of its members, confirmed the appointment of the appellants. The Governor of the State swore them in on April 1, 2010.
The Claimant/first respondent repaired to the forensic trenches and triggered off another suit [Suit No HOS/M70/2010 -Hon Timothy Owoeye v Osun State House of Assembly]. In the new suit, he contested the validity of the Notice of Withdrawal of the appeal [against the judgment in suit No: HOS/M41/2009 Hon Timothy Owoeye v Osun State House of Assembly]. The principal plank on which the latter suit [Suit No HOS/M70/2010- Hon Timothy Owoeye v Osun State House of Assembly] was anchored was non-service of the said Notice of Withdrawal on him.
In a nut shell, he contended that the said Notice was ineffectual and incapable of terminating the appeal because it was incompetent for want of service. In effect, he canvassed the position that both the appeal and application for stay of execution were still extant. As such, the above re-screening exercise was irregular and an abuse of court process. After hearing the parties, the lower court [Coram Falola, J.] agreed with the claimant that the Notice of Appeal against Suit No: HOS/M41/2009 – Hon Timothy Owoeye v Osun State House of Assembly was still subsisting.
The court invalidated the said Notice of Withdrawal and granted all the reliefs claimed. It made an additional order dissolving the Board of OSSIEC and directed the appellants to vacate their offices. The present appeal is a protest against the said judgment in suit No HOS/M70/2010 – Hon Timothy Owoeye v Osun State House of Assembly. From their six grounds of appeal, they formulated six issues for the determination of this appeal. They were framed thus:
1. Whether the learned trial judge was right in his decision that the Notice of Withdrawal of Appeal filed by the Defendant/Respondent to withdraw the appeal it hitherto filed against the decision of the lower court in suit HOS/M.41/2009, cannot terminate the appeal, and being in confrontation with Order 11 Rules 1, 2 and 4 of the Court of Appeal Rules.
2. Assuming without conceding that the Notice of Appeal filed by the Defendant/Respondent against the judgment of the lower court in suit HOS/M.41/2009 was still pending as at 30th March, 2010, when the re-screening of the Appellants by the Defendant/Respondent took place, whether the learned trial judge was right in using the fact to nullify the re-screening, when the re-screening was in obedience to the ratio decidendi of the judgment of the lower court in suit HOS/M.41/2009 by the Defendant/Respondent and there is no law or procedure that a person against whom a judgment has been given cannot comply with it in the pendency of an appeal…
3. Whether the learned trial judge was right in giving judgment and making orders against the Appellants who were not parties to the suit before him.
4. Whether the proceedings of the lower court and the orders made therein by the learned trial judge have not infringed on the Appellants right to fair hearing.
5. Whether the learned trial judge was right in making orders in his judgment that was not part of the reliefs sought by the Claimant/Respondent in the Originating Summons before the court”.
6. Whether the learned trial judge was right in entertaining the suit and giving his judgment when the proper parties are (sic) not before him.
ARGUMENTS OF THE PARTIES
ISSUE 1
Whether the learned trial Judge was right in his decision that the Notice of Withdrawal of Appeal filed by the defendant/respondent to withdraw the appeal it hitherto filed against the decision of the lower court in Suit HOS.M41/2009 cannot terminate the appeal, and being in confrontation with Order 11 Rules 1, 2 and 4 of the Court of Appeal Rules.
APPELLANTS’ SUBMISSIONS
Counsel for the appellants, first, explained that Suit No HOS/M.70/2010, now on appeal, is an offshoot of the judgment in Suit No HOS/M.41/2009 between the claimant/respondent and the defendant/respondent. He further explained that, although the defendant/respondent had appealed against the judgment, it later applied for the withdrawal of the appeal by filing a Notice of Withdrawal at the Registry of the lower court. According to him, by the time of filing of the said notice of withdrawal, the records in suit No HOS/M.41/2009 had not been compiled and hence the appeal had not been entered at the appeal court.
He contended that the defendant/respondent intended to withdraw the appeal and had effectuated its intention by, formally, filing a notice of withdrawal of that appeal against Suit No HOS/M.41/2009 at the lower court. In his view, the filing of the notice of withdrawal of the appeal effectively terminated the said appeal against Suit No HOS/M.41/2009, citing Ezomo v AG, Bendel State [1986] 4 NWLR (pt 36) 448.
He explained that the lower court found in favour of the subsistence of the Notice of Appeal. He observed that the said court found that all the parties to the said appeal did not consent to the withdrawal of the appeal. As such, the court held that the appeal was still subsisting since the Notice of Withdrawal did not terminate the appeal. He disagreed with the conclusion of the lower court. He contended that the said conclusion was contrary to the decision in Ezomo v AG, Bendel State (supra) and Osakwe v Fed. College of Education, Asaba and Anor [2010] 5 SCM 185, 202-205.
In further contestation of the reasoning of the lower court, he adduced four reasons in support of the position that the intention to withdraw the appeal had been expressed and the appeal was deemed terminated, [paragraph XIV, page 12 of the appellants’ brief], citing Suberu v State [2010] 5 SCM 215,230; Okwejiminor v Gbakeji [2008] 3 SCM 134, 170 and Oyewole v Akande [2009] 10 SCM 125, 143 and 147. He maintained that the defendant/respondent’s notice of withdrawal of the appeal did not violate the provisions of Order 11 Rules 1, 2, 4 and 5 of the Court of Appeal Rules, 2007. In his view, the provisions of the said Rules would not prevent it from withdrawing the said appeal.
According to him, Order 11 (supra) only applies where an appeal has been entered at the Court of Appeal but is being withdrawn before the appeal is called for hearing. In his view, the entirety of Order 11 Rules 1- 5 (supra) would only operate in respect of an appeal that has been entered at the Court of Appeal. As the appeal against Suit No HOS/M.41/2009 had not been entered, the above provisions of the Rules of this court were inapplicable. Even then the appeal had not been listed for hearing, hence a notice of withdrawal was enough to terminate it, Ndigwe v Nwude (1999) 11 NWLR (pt 626) 314.
CONTENTION OF THE CLAIMANT/FIRST RESPONDENT
Counsel for the claimant/first respondent, first, noted that the said Suit no. HOS/M.70 /2010 was an offshoot of the proceedings and the judgment of the lower court in suit No HOS/M41/2009 (supra). The parties in the above-named suits were the claimant/first respondent and defendant/respondent in this appeal, respectively.
He, further, explained that the defendant/respondent filed a notice of appeal on March 1, 2010. It, also, filed a motion on notice for stay the execution of the ruling/judgment in suit No HOS/M41/2009. The said motion for stay of execution was struck out on May 4, 2010.
According to him, while the said application for stay of execution was pending before the lower court, the defendant/respondent filed a Notice of Withdrawal under Order 11 Rule 1, dated March 29, 2010.
He submitted that the said Notice of Withdrawal was, fundamentally, defective as it contained no address for service of the party for whom the notice was intended, citing Order 11 Rule 1 of the Court of Appeal Rules, 2007. He contended that the failure to serve the claimant/respondent with the said notice of withdrawal was a fundamental defect in the proceedings. He noted that Order 11 Rule 1 contemplates service of the notice of withdrawal on the parties to a suit. Service of process, in the instant case, the notice of withdrawal, on a party is so fundamental that its absence may affect the jurisdiction of a court and render a court’s proceedings a nullity.
Responding to the contention in paragraph 4.01(iv) and (v) of the appellants’ brief of argument, Counsel canvassed the view that the appellants glossed over the deposition in paragraph 5 of the claimant/first respondent’s affidavit in support of the Originating Summons [page 4 of the record] to the effect that “when I perused the Notice of Withdrawal of Appeal, I discovered that my name was not put on it as a party to be served… ”
He also referred to the deposition contained in the reply to the counter-affidavit filed by the claimant/first respondent [page 26 of the record] and exhibit “AA” [page 32 of the record], citing paragraph 2(iv) of the reply to counter-affidavit [page 26 of the record], Onyejekwe v Enweonwu (2010) 4 NWLR (pt. 1185] 477, 486. He submitted that the Notice of Withdrawal of Appeal has the same effect as notice of discountenance of a pending suit and as such must be on notice in compliance with Order 11 Rule 1 of the Court of Appeal Rules.
He referred to the findings of the lower court [page 162 of the record]. In his view, this incontrovertible finding of the court is unassailable. He submitted that the non-service of the notice of withdrawal on the claimant/first respondent made the purported withdrawal incompetent, Olorunyolemi v Akhagbe (2010) 8 NWLR (pt. 1195) 48, 61. He dismissed the argument that the claimant/respondent was aware of the filing of the notice of withdrawal as unfounded in law, placing reliance on Olorunyolemi v Akhagbe (supra) at page 60.
As shown above, it was contended for the appellants that since the appeal had not been entered at the Court of Appeal at the time of filing the said notice of withdrawal, the filing of the said notice at the lower court, effectively, terminated the appeal, relying on Ezomo v A.G. Bendel state (1986) 4 NWLR (pt. 36). Learned counsel for the claimant/first respondent dismissed that submission as unfounded.
In his view, that submission failed to distinguish between the intention to withdraw an appeal by the process of filing and the action to implement the intention which must include “[service] on the parties to the appeal a notice to the effect that he does not intend to prosecute the appeal any further.”
He submitted that the mere act of filing a notice of withdrawal will not, effectively, terminate the appeal filed. Rather, he must act to implement the intention not to prosecute the appeal any further by effecting service on other parties to the appeal even when the notice was filed at the Registry of the lower court. He contended that Ezomo v A.G. Bendel State (supra) was inapposite. He took the view that it was insufficient to, merely, give Notice of Withdrawal of the Appeal to the parties, and file such notice with the Registrar of the court. Such a notice must be served, citing Karibi Whyte JSC in Ezomo’s case (supra).
He endorsed the reasoning of the lower court at pages 162-163. He submitted that order 11 Rules 1 – 5 of the Court of Appeal Rules, 2007, in pari materia with the Court of Appeal Rules, 2011, did not anticipate the appellants’ withdrawal of an appeal or discontinuance of appeal suo motu. While Order 11 Rule 1 of the 2007 Rules contemplated a unilateral filing of Notice of Withdrawal of Appeal and service on the other party; Rules 2 and 3 were concerned with the withdrawal of appeal with consent and its effect. Order 11 Rule 4 dealt with effect of withdrawal without consent. Thus, the contention that the appellant could withdraw an appeal suo motu is not a correct statement of the law, Edozien v. Edozien (1993) 1 NWLR (pt.272) 678, 705.
He took the view that the appellant, who filed a notice of withdrawal, was duty-bound, under Order 11 Rule 1, to serve it on the respondent and could not suo motu file the Notice of Withdrawal of Appeal to, effectively, terminate same. He noted that Ezomo v. A.G. Bendel State (supra) was a decision on the effect of a valid Notice of Withdrawal of Appeal filed at the lower court for onward transmission to the Court of Appeal and which notice was duly served on the respondent.
He maintained that in the instant case, two notices of withdrawal came up before the lower court. The court found that, apart from the fact that there was no address for service on the Notice in the court’s file, there was no proof of service of the said Notice on the respondent. The principle in Ezomo v. A.G. Bendel State (supra) would not apply as the purported notice of withdrawal was invalid. He insisted that Suberu v State (supra) and Okwejiminor v. Gbakeji (supra) were inapplicable because of the lower court’s findings at page 162.
He submitted that parties are bound by the record of the court. On its part, the court has the inherent power to compare the documents in its file for the purpose of resolving the conflicts therein, as shown in the instant case. He contended that the two Notices of withdrawal exhibited before the lower court were not the same in any material respect. The omission of the endorsement for service on the claimant/first respondent would lead to the conclusion that the defendant/respondent was not prepared to effect the service of the said notice as required by Order 11 Rule 1 (supra) and as such there was no consensus to withdraw the appeal.
In his view, the expression of mere intention to withdraw the appeal without acting to implement the intention and serve the other party would make the Notice to Withdraw an Appeal incompetent. He dismissed the submission that the trial judge, unilaterally, picked the alleged notices in the file and used them against the defendant/respondent without hearing the parties on their alleged differences. He adopted his arguments in paragraphs 4.33-4.37 of the brief.
RESOLUTION OF THE ISSUE
As shown above, counsel for the appellants explained that the defendant/respondent appealed against the judgment in Suit No HOS/M.41/2009. However, it later applied for the withdrawal of the appeal by filing a Notice of Withdrawal at the Registry of the lower court. According to him, by the time of filing of the said Notice, the records in the said suit had not been compiled and hence the appeal had not been entered at the appeal court.
This contention is unanswerable. Like Order 3 Rule 18 (1) of the Court of Appeal Rules, 1981; Order 11 Rule (1) of the Court of Appeal Rules, 2007 is similarly worded like Order 11 Rule (1) of the 2011 Rules. Two unrelated circumstances are, clearly, distinguishable under these Rules. The first is where an appeal has been brought sequel to the proper filing of a Notice of Appeal at the court below, Ogunremi v. Dada (1962)1 All NLR 663; Adewoyin & Ors. v. Adeyeye (1962) 2 All NLR 108.
The second situation relates to where an appeal has been entered at the Court of Appeal, that is, when the Appeal Court has received the Record of Appeal and the appeal is called for hearing, Ezomo v AG, Bendel State (supra) Ogunremi v. Dada (supra); Adewoyin & ors. v. Adeyeye (supra). Put simply, these Rules recognise that there are two distinct periods: the period between the time when the appeal was deemed brought, that is, when the notice of appeal was filed, and before the record of appeal was forwarded to the Court of Appeal.
During this period, that is, when the appeal has not been entered at the Court of Appeal, the appellate Court has limited control over the proceedings as between the parties. In such a circumstance, every application should, usually, be first made to the Court below where the notice of the Appeal was given, Ogunremi v. Dada (supra).
The other period relates to the time after the record of appeal is received at the Court of Appeal. At this period, when the record has been received at the Court of Appeal, technically referred to as when the appeal has been entered at the Court of Appeal, the High Court, from which the appeal emanated, would cease to have jurisdiction, Ogunremi & Anor v Dada (supra); Ezomo v AG, Bendel State (supra); Adeleke v OYSHA [2006] 10 NWLR (pt 987) 50; Ezeokafor v Ezeilo [1999] 6 SCNJ 209; Shodeinde v Registered Trustees, Ahmadiyya Movement [2001] FWLR (pt 58) 1065.
The clear intendment of the above Rules is to foreclose the awkward possibility of parties agitating their matters at the lower and appellate courts, concurrently. Akinyemiv Soyanwo [2006] LPELR -SC 51/2001; [2006] 13 NWLR (pt 998) 496.The net effect is that we agree with the appellants’ counsel that the said Notice of Withdrawal was properly filed at the Registry of the lower court since the records in the said suit had not been compiled. A fortiori, the appeal had not been entered at the appeal court, Governing Council ITF v Chijioke (1998) 3 NWLR (pt 540) 170. However, this is where we shall part ways with the learned counsel for the appellants.
He, also, contended that the defendant/respondent intended to withdraw the appeal and had effectuated its intention by, formally filing a Notice of Withdrawal of that Appeal against the suit at the lower court. In his view, the filing of the notice of withdrawal, effectively, terminated the said appeal against suit No HOS/M.41/2009, citing Ezomo v AG Bendel State [supra].
We deem it important to set out the views of the lower court here. At page 162, it found that:
There are two different Notices of withdrawal attached as exhibits by the two parties; one with address for service on the plaintiff and one without address for service. Curiously, the same Assistant Registrar certified the two documents. I have checked the original copy in the case file and discovered that not only was there no address of service on the defendant, there is no proof of service on him. By implication there is no consensus to withdraw the Appeal.
Now, parties are bound by the records of the Court, Gonze (Nig) Ltd v NERDC (2005) 13 NWLR (pt 943) 643,646; Odiase v Agho (1972) 1 All NLR (pt 1) 170; Folorunsho v Adeyemi (1975) 1 NMLR 128; Balogun v Adejobi (1995) 2 NWLR (pt 376) 131 etc. Thus, what emerges from this finding, which has not appealed against, is that the defendant/respondent filed a Notice of Withdrawal of the said appeal. However, the said notice was not served on the claimant/first respondent.
In our humble view, then, the principle of law, eloquently, stated in Ezomo v AG, Bendel State (supra) is unavailing to the appellants in this appeal. The decision in Ezomo v AG, Bendel State (supra) and a host of others, such as Edozien v Edozien (supra) speak to the indispensability of service as a basic desideratum for the validity of a Notice of Withdrawal of Appeal. Thus, it is only where a notice of withdrawal has been filed and served on the respondents that the appeal in question is deemed, automatically, dismissed, Ezomo v AG, Bendel State (supra); Edozien v Edozien (supra).
The decisions in Dingyadi v INEC (No 1) [2010] 18 NWLR (pt 1224) 1; (2010) LPELR -SC.32 (R2) and Dingyadi v INEC (No 2) (2010) 18 NWLR (pt 1224) 154; (2010) LPELR -SC.32 (R), also, emphasize the indispensability of service for the efficacy of such Notice of Withdrawal; also, Adeogbo v Yusuf (1990) 6 NWLR (Pt.158) 588.
What is more, the submission of the appellants’ counsel [paragraph 4. 01 of the Brief] that the claimant/first respondent was aware of the filing of the notice of withdrawal is not only tendentious, it is actually preposterous. It is, indeed, an affront to the proposition well-settled in cases like Olorunyolemi v Akhagbe (2010) 8 NWLR (pt 1195) 48, 80; Habib Nig Bank Ltd v Wahab Opomularo and Ors (2000) 15 NWLR (pt 690) 315.
The rationale of these binding authorities is that even if a party is in court, there must be actual proof of service on him. This can only be done by showing his signature personally, or that of his counsel, on the process or by an affidavit of service sworn to by the person who effected service.As shown above, there was no appeal against the above finding of the lower court with respect to non-service of the said notice on the claimant. As such, the court’s findings would be deemed to have been accepted, Ime Umanah v Victor Attah (2006) 9 KLR (pt 226) 3393, 3417.
At page 12 [paragraph XIV] of the appellants’ brief, extravagant allegations were levelled against the lower court. It was argued that its position that “there was no consensus to withdraw the appeal” on the “basis that he noted that there are two notices of withdrawal being relied upon by the parties in the file…is contrary to the case of the parties…”
With due respect, this sophistic contention, totally, underrated the pungency of the averments in the affidavits [vide paragraph 6 of the counter-affidavit of the defendant/respondent [page 10 of the record] and exhibit “A”, the notice of withdrawal. Reference may also be made to page 18 of the record where the defendant/respondent, in the written address, placed reliance on the said paragraph 6 and the said exhibit “A”.
On the other hand, the claimant/first respondent attached the certified true copy of the notice of withdrawal, marked exhibit “AA”, to paragraph IV of the reply to the counter affidavit. Indeed, in the written address [at pages 28-29 of record], the claimant/first respondent interrogated the competence of the notice of withdrawal.
He hinged his argument on the fact that the said process was not served on him. He even attached exhibit “AA” to paragraph IV of the said reply to the counter affidavit [page 32 of the record] to buttress the fact that the defendant/respondent never intended to effect service of that process on him since it did not even have the address for service. In effect, the lower court’s finding at page 162 of the record was in furtherance of the reconciliation of the arguments above and the scrutiny of the exhibits. Listen to the court again:
There are two different Notices of withdrawal attached as exhibits by the two parties; one with address for service on the plaintiff and one without address for service. Curiously, the same Assistant Registrar certified the two documents. I have checked the original copy in the case file and discovered that not only was there no address of service on the defendant, there is no proof of service on him. By implication there is no consensus to withdraw the Appeal.
From the above findings, we hasten to add that the lower court was, indeed, lenient on the said Assistant Chief Registrar by overlooking his opprobrious antics which bothered on chicanery. We shall say no more on this, since it was not made an issue before us.
In all, our answer to the question, which this issue posed, is that the lower court was right in its decision that, since the said Notice of Withdrawal of Appeal was not served on the claimant, the said notice did not terminate the appeal and, indeed, “the Notice of Appeal and the Motion on Notice for Stay of Execution were all subsisting…” [page 162 of the record]. Accordingly, we resolve this issue against the appellants.
ISSUE 2
Assuming without conceding that the Notice of Appeal filed by the Defendant/Respondent against the judgment of the lower court in suit HOS/M.41/2009 was still pending as at 30th March, 2010 when the re-screening of the Appellants by the Defendant/Respondent took place, whether the learned trial judge was right in using that fact to nullify the re-screening, when the re-screening was in obedience to the ratio decidendi of the judgment of the lower court in suit HOS/M.41/2009, by the Defendant/Respondent and there is no law or procedure that a person against whom a judgment has been given cannot comply with it in the pendency of an appeal…
APPELLANTS’ ARGUMENTS
By way of prefatory remarks, counsel explained that the dispute between the claimant/first respondent and the defendant/respondent, which prompted Suit HOS/M.41/2009, was the complaint that out of the seven (7) persons whom the Governor of Osun State appointed to be Chairman, Secretary and Members of OSSIEC (that is, the appellants), the credentials of five (5) of the nominees were not attached to the curriculum vitae submitted to the defendant/respondent for its screening exercise.
In suit HOS/M.41/2009, the claimant/first respondent contended that this violated section 106 of the 1999 Constitution of the Federal of Nigeria. The lower court endorsed that view.
counsel cited page 83 of the judgment in suit HOS/M.41/2009. He observed that the mischief that yielded suit HOS/M41/2009 was, adequately, recognized as the absence of the credentials of the said five (5) of the nominees. He conceded that the lower court held that this was not in compliance with the Constitution. In his view, that was the ratio decidendi of the judgment.
He, further, explained that the defendant/respondent, initially, appealed against the judgment. However, it later withdrew the appeal, and re-called the appellants for re-screening in line with the above decision for them to present their credentials. He noted that on March 30, 2010, the appellants appeared before the defendant/respondent. Their credentials were served on all the members of the defendant/respondent. However, the claimant/first respondent and other members of his party in the House of Assembly [defendant/respondent] decided to walk out on the screening exercise.
Their ground was that an appeal was still pending against the judgment in suit HOS/M.41/2009, citing paragraphs 8-14 of the affidavit in support of the Originating Summons on pages 4 and 5 of the records. The lower court held that the re-screening exercise of March 30, 2010 was improper because an appeal was pending against the judgment in suit HOS/M.41/2009.
He conceded that a judgment is valid, subsisting and binding on all parties until it is set aside, A.G. Anambra v A.G. Federation [2005] 5 SCM 38 at 55 and 57.
He, equally, conceded that a judgment, even if erroneous or wrong, must be obeyed, Labour Party v INEC [2009] 2 SCM 122, 136. He, further, observed that, merely, filing an appeal does not constitute a stay of a judgment.
He submitted that a person, against whom judgment has been given, as in the case of the defendant/respondent in suit HOS/M.41/2009, has two options in law – either to abide by the judgment or appeal against it. Where the second option of appeal is chosen, the judgment is, all the same, still binding on the person until it is set aside by the appeal court. He took the view that no law prohibits a person, against whom judgment has been given, from complying with its terms when his appeal is still pending.
He impeached the lower court’s conclusion that the screening exercise of March 30, 2010 was wrong. He, equally, protested the order setting aside the said re-screening exercise on the ground that an appeal against the judgment in suit HOS/M.41/2009 was still pending. In his view, that judgment cannot stand having regard to the established principle of bindingness of a judgment until it is set aside. This is more so, according to him, when the purpose of the re-screening exercise was to rectify the mischief identified in the first screening exercise that precipitated suit HOS/M.41/2009.
CONTENTION OF THE CLAIMANT/FIRST RESPONDENT
Counsel explained that the claimant/first respondent, by way of Originating Summons in suit no. HOS/M.41/2009, submitted five questions to the lower court for determination and prayed for three reliefs. The questions bothered on the power of assessment which the Constitution assigned to the defendant/respondent and whether that constitutional role had been, properly carried out. [pages 62 – 64 of the records.]
He drew attention to the trial court’s reasoning after resolving the issues in the suit.
He maintained that the said reasoning formed the ratio decidendi of the judgment. All the questions were answered in the affirmative and the reliefs sought were all granted in suit HOS/M.41/2009, citing page 82.
According to counsel, the lower court, by way of an obiter dictum, only made the clarification that the appointment of the Chairman and Members of the Osun State Independent Electoral Commission which the Governor made remained valid and only the purported confirmation of the appointment undertaken by the House of Assembly was set aside. [page 83 of the records.] He submitted that the concluding part of the judgment in suit no.
HOS/M.41/2009 was a judicial comment made in passing while the trial judge was delivering his opinion and was not necessary for the decision of the said suit, Onah v Okenwa (2010) 7 NWLR (pt.1194) 512, 531. He, accordingly, maintained that the said statement made in passing to clarify the situation, as in the instant case, would not constitute the ratio decidendi as contended by the learned counsel to the appellants.
He observed that the defendant/respondent appealed against the judgment and filed an application praying for stay of execution of the judgment before the trial court. The ruling on the application for stay of execution of judgment was pending until 4th May, 2010 when it was struck out. [pages 158-159 of the record.]
He, further, explained that during the pendency of the said application for stay of execution, the defendant/respondent, on March, 29th 2010, in purporting to withdraw the appeal, filed a notice of withdrawal that bore no address for service. Worse still, the proof of service was not available in court.
While the Notice of Appeal and the Motion for Stay of Execution were all subsisting, the defendant/respondent, on March 30, 2010, conducted a re-screening exercise for the appellants. The claimant/first respondent protested, pointing to the pendency of the appeal in suit no. HOS/M.41/2009.
He submitted that the judgment, in HOS/M.41/2009, did not order a re-screening of the appellants. Thus, the submission that the re-screening exercise was consistent with that judgment is unsupportable both legally and factually.
He observed that the claimant/first respondent’s grievance against the re-screening exercise precipitated suit no. HOS/M.70/2010. The said suit sought to determine the question whether or not the re-screening exercise was proper in law and did not constitute an abuse of court process in view of the pendency of the Notice of Appeal and the Motion on Notice for Stay of Execution of the judgment in suit no. HOS/M.41/2009.
According to him, suit no. HOS/M.70/2010, now on appeal, challenged the propriety of the said re-screening exercise during the pendency of Notice of Appeal and Motion for stay of Execution of the subsisting judgment in suit no. HOS/M.41/2009. In addition, it sought to challenge the validity or otherwise of the Notice of Withdrawal filed on March 29, 2010.
He submitted that the binding, valid and subsisting judgment of the lower court was that contained at page 82 of the record [set out in the brief of argument (supra).
He explained that the lower court, having found that the conduct of defendant/respondent was, obviously, in confrontation with Order 11 Rules 1, 2 and 4 Court of Appeal Rules, correctly, found against it.
RESOLUTION OF THE ISSUE
As shown above, the appellants contended that the “mischief (so to say) leading to suit HOS/M41/2009 was adequately recognised as the non-attachment of the credentials of five of the nominees to OSSIEC of their curriculum vitae for the first screening exercise…was the ratio decidendi of his judgment” [page 14, paragraph iv of the brief].
With respect, this submission pays undue lip service to the economy of words.
We, therefore, deem it necessary to set out the reasoning of the lower court, on this question, in extenso. At page 75 of the record, the court observed thus:
…the court is not confused about its role which is merely to ensure that the defendant follows the law and upholds due process in carrying out the assessment of the nominees in line with the constitutional provisions…It does not matter at this stage if all the nominees are qualified and their appointments deserve to be confirmed, based on the credentials they possess. The crucial issue is that the confirming authority unlawfully denied itself the opportunity of seeing those documents…The procedure adopted by the respondent in confirming the appointments of the nominees of members of [OSSIEC] on 24th March, 2009 is an infraction to (sic) the provision, spirit and intendment of the Constitution…
[italics for emphasis]
At page 80, the court explained that “this case is an attack on the procedure adopted by the defendant to undertake do (sic) the confirmation of the appointment of the nominees without recourse to the Constitution and not a challenge on (sic) the qualification of the nominees per se.”
From the above excerpts, it could be seen that the court was concerned with the approach which the defendant/ respondent adopted in the said screening exercise. Instructively, the issue of procedural due process ran like a thread through the five questions set out for the determination of the Originating Summons at the lower court, For example, question one was framed thus: Whether the defendant is not bound by the combined provisions of sections 106 and 200 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, in the screening and confirmation of Chairman and Members of [OSSIEC].
Questions two; three; four and five were, equally woven around the procedures in sections 106 (c); 106 (b) and 106 (a) of the said Constitution, respectively, [pages 63-64 of the record]. Thus, for the determination of the ratio decidendi of the lower court’s judgment, those questions must be of pivotal consideration. After all, as Karibi-Whyte JSC held in Savanah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279:
In determining the ratio decidendi of a case, it is safer to consider the claim before the court and the issue which the court was called upon to decide. Thus, the reasons given by the court for deciding the claim before it is the ratio decidendi which the court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors…Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding…
[italics for emphasis].
Since the question of the validity of the appointments was not in issue, it follows that the comments of the lower court at page 83, contrary to the postulations of the appellants, could not have been the ratio decidendi. The court said:
“I like to clarify that while the appointment of the Chairman and Members of the Osun State Independent Electoral Commission made by the Governor and forwarded to the House of Assembly (which has not been challenged) remains valid, only the purported confirmation of the appointment undertaken by the House of Assembly is set aside.”
We entirely endorse the submission of the counsel for the claimant/first respondent that the above comment was nothing more than an obiter dictum, Onah v Okenwa (2010) 7 NWLR (pt 1194) 512, 531; see, also, Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 48t; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Rupert Cross, “The Ratio” in 20 MLR 124-126; A. G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal; LJ; Odiase v Agho (1972) 1 All NLR 170, 176; Savanah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279; N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413) etc.
At page 14 [paragraph V] of the brief, the appellants made the misleading submission that “…the defendant/respondent…recalled the appellants for re-screening in line with the decision of the court in Suit HOS/M41/2009 for them to present their credentials…”
This submission is, with respect, an unwarranted distortion of the decision of the lower court. As the counsel for claimant/respondent, rightly, contended in paragraph 5.11 of the brief, “nowhere in the judgment delivered in HOS/M41/2009 did the court order (sic) a re-screening of the appellants.”
True, indeed, it was the propriety of the re-screening exercise by the defendant/respondent during the pendency of the Notice of Appeal that was at the heart of the subsequent suit No HOS/M 71/2010.
As the lower court observed at page 162 of the record “It is obvious from the process (sic) filed so far that the issue of re-screening of the Chairman and OSSIEC members were done when the dispute is (sic) still in court. The Notice of Appeal and the Motion on Notice for Stay of Execution were all subsisting as at the time the defendant carried out the exercise.”
To further debunk the submission that “… the defendant/respondent…recalled the appellants for re-screening in line with the decision of the court in Suit HOS/M41/2009 for them to present their credentials…”, it may be necessary for the lower court to speak for itself here. Listen to this opinion:
“The defendant ought to determine what it actually wants. Having switched on the engine of litigation by filing an appeal, and went on to rev up the accelerator by filing and arguing motion for Stay of Execution, it cannot go back without taking proper steps. The defendant turned to deceive and diverted the attention of the plaintiff by engaging the court at one breath and going back to engage in self help at the other end. The court is ever vigilant to ensure there is minimum conflict in the society. The House of Assembly is a creation of law and should be reminded constantly on (sic)the need to follow the law. As I said earlier, the issues in dispute were still live questions in court until 4th May, 2010. Any step taken by the House of Assembly at least before that date is illegal, null and void”
It is, therefore, not true that, in deciding to conduct the said re-screening exercise, the defendant/respondent was “complying with the terms of the judgment…” paragraph xii, page 15 of the appellant’s brief. The defendant/respondent did not, actually, comply with the judgment. It was rather aggrieved by it. As the court explained:
“Aggrieved by the decision of this court to dissolve the OSSIEC, the defendant herein, OSHA, filed an appeal and followed it up with a Motion on Notice for Stay of Execution of the judgment. Arguments were taken on the Motion for Stay of Execution. The motion was then adjourned to 14th April, 2010 for ruling. While awaiting the ruling [on the] Motion for Stay of Execution of the judgment pending Appeal, the defendant/ House of Assembly filed a one page Notice of Withdrawal of the Appeal. Non (sic) of the parties appeared to take the ruling which was fixed for 14th April, 2010. Consequently, the court caused fresh hearing notice to issue be on the two parties against 4th of May, 2010. And on 4th May, 2010 the parties failed to appear in court and were not represented. Consequently, the Motion for Stay of Execution of the judgment was struck out that day, 4th May, 2010. By necessary implication, the matter, HOS/M41/2010, was still a life question before this court and the Court of Appeal as at 4th May, 2010.”
Being a live issue, the court had a duty to determine it one way or the other. After all, it is the duty of all courts to determine issues placed before them. Thus, a court would have failed in its duty where it failed to do so, Irole v Uka [2002] 14 NWLR (pt 786) 195, 225.
Above all, it has long been settled on the authorities that a court would not hesitate to invoke its disciplinary powers to prevent its processes from being used as a mere subterfuge.
Thus, once parties have turned their dispute over to the courts for determination, the resort to self-help must end. Thenceforth, it would not be permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness. Indeed, a court would always look with askance at any disingenuous approach which may give the impression that it is being used as a mere subterfuge to tie the hands of one party while the other party helps himself extra-judicially.
Both parties are expected to await the result of the litigation and the appropriate order of court before acting further. As such, it is a reprehensible conduct for any party to an action or appeal, pending in court, to proceed to take the law into his hands without any specific order of the court and to do any act which would pre-empt the result of the action.
The courts frown against such a conduct and would always invoke their disciplinary powers to restore the status quo, Registered Trustees, Apostolic Church v Olowoleni (1990) 6 NWLR (pt 158) 514; Combined Trade Ltd v A.S.T.B. Ltd. (1995) 6 NWLR (pt. 404) 709; Ezegbu v. F.A.T.B. Ltd. (1992) 1 NWLR (pt.220) 699.
This ancient rule is even more cogent in a constitutional democracy such as ours where the Judiciary operates as “the guardian of the Constitution”. In the discharge of its guardianship role, it has a duty to ensure that every arm of Government operates only within the substantive and procedural frameworks which the Constitution ordains, AG Bendel v AG Federation [1983] ANLR 208. In our humble view, therefore, the totality of the submissions on page 14-15 [paragraphs iv-xiv] holds no water. We, therefore, resolve this issue against the appellants.
ISSUE 3
Whether the learned trial judge was right in giving judgment and making orders against the Appellants who were not parties to the suit before him?
APPELLANTS’ SUBMISSIONS
Counsel noted here that the appellants were not parties to the suit before the lower court and they were not privies to either of the parties. He further noted that the claimant/respondent did not allege any wrong doing against any of the appellants directly. On the contrary, the case was against the proceedings of the defendant/respondent which was alleged to be improper on the ground of pendency of the appeal in suit HOS/M.41/2009.
He observed that the Osun State Independent Electoral Commission (OSSIEC) “of which the appellants are Chairman, Secretary and Members respectively” is a constitutional/statutory body by virtue of section 197(1)(b) of the 1999 Constitution of Nigeria (as amended). In his view, by section 199(i) of the said Constitution, the appellants have a statutory tenure of office of five (5) years.
By virtue of Section 198 of the Constitution, the Governor of Osun State is vested with the power of making appointments to OSSIEC. By the same provision, the State House of Assembly – defendant/respondent – is only to confirm the appointment.
Counsel submitted that by the constitutional provisions, the appointment of the appellants into office by the Governor of Osun State and the confirmation of the appointment by the defendant/respondent are two separate actions and proceedings. Thus, any defect in the proceedings of the defendant/respondent in the confirmation exercise will only affect the exercise which is an internal affair of the defendant/respondent, and will not nullify the appointment made by the Governor, since it was not the defendant/respondent that made the appointment.
Above all, the claimant/first respondent, also, did not pray the lower court for an order setting aside the appointment which the Governor of Osun State made into OSSIEC. He observed that the learned trial Judge, incidentally, was the trial Judge in the first suit, HOS/M.41/2009. His Lordship appreciated the constitutional provisions and the distinction between the appointment which the Governor made and the confirmation of the appointment which the defendant/respondent made. Citing pages 58-83 of the records, counsel noted that the court acknowledged that a defect in the latter will not affect the former in his judgment in suit HOS/M.41/2009.
He noted that the present case, leading to this appeal, arose out of the claimant/first respondent’s grievance with the re-screening exercise conducted on March 30, 2010. Here, he, also, did not challenge the appointment of the appellants which the Governor made. However, in concluding his judgment, His Lordship made specific orders against the appellants and their appointment. He contended that, by this order, the learned trial judge made orders against the appellants who were not parties before him contrary to decided authorities, Okonkwo v Okagbue (1994) 12 SCNJ 89. Such an order has been held to amount to a nullity, Anyanwoko v Okoye and Ors [2010] 1 SCM 21, 38.
Accordingly, he took the view that the order dissolving OSSIEC and ordering the appellants to vacate office is incompetent, wrongful and a nullity.
ARGUMENTS OF THE CLAIMANT/FIRST RESPONDENT
For the claimant/first respondent, it was submitted that section 197(1)(b) (supra) provides for the establishment of the State Independent Electoral Commission. By the provision of section 199(i) of the same Constitution, the body so constituted will have a statutory tenure of office of five (5) years.
Counsel, further, observed that by virtue of section 198 of the said Constitution, the Governor is vested with the power of making appointments to OSSIEC. The said appointments shall be subject to confirmation by a resolution of the House of Assembly, that is, the defendant/respondent.
He submitted that in view of section 198 (supra), which vests the defendant/respondent with the constitutional role to confirm the appointment made by the Governor, the status of the appellants cannot be cognisable in law until the appointment is confirmed by the defendant/respondent, NDIC v Okem Ltd (2004) 18 NSCR 90-91.
The view was canvassed that section 198 (supra) gave the Governor of the State the power to appoint the Chairman and Members of the OSSIEC. However, the appointment cannot take effect and neither can the members of the commission – the appellants – validly take the oath of office or assume duty until the appointment is confirmed by the House of Assembly.
Accordingly, the said appointment which the Governor made was inchoate and would not crystallise in the statutory body of the appellant as long as it was not confirmed by the House of Assembly, Togun v Oputa (2001) 16 NWLR (pt. 740) 585.
He canvassed the view that the live issue involved in the suit was the constitutional role of the defendant/respondent capable of bringing the appellants into legal existence. In his view, the appellants, by the mere appointment which the Governor made, were at the stage of incubation. At that stage, their legal right to be, through the stamp and confirmation by the defendant/respondent, was called to question. In effect, the appellants were neither necessary nor proper parties before the court to bring about effectual determination of main issues in controversy.
He observed that the court in suit no. HOS/M.41/2009 set aside the purported confirmation of the appointment of the appellants. It ordered its dissolution for failure to comply with the provisions of the Constitution with regard to the normal procedure for the confirmation of the appellants’ appointments.
According to him, it was the attempt of the defendant/respondent to wriggle out of the effect of the subsisting judgment in HOS/M.41/2009 that provoked the instant suit on appeal. He referred to the opinion of the lower court at page 163 of the record.
He explained that the court, having invalidated the said re-screening exercise, answered the questions submitted for determination in the affirmative; found for the claimant/first respondent and granted the request for consequential order to dissolve the OSSIEC in the judgment.
He submitted that a consequential order was an order giving effect to the judgment. The court had the power, as in the instant case, to grant such relief as a consequential relief in so far it did not detract from the judgment and did not contain extraneous matters, OSSIEC v AC (2010) 19 NWLR (pt.1226) 273, 322-324. He took the view that the right of the appellants was not cognisable in law in view of the provision of section 198 (supra). In his view, therefore, the lower court was right to have made the consequential order: an order that the appellant should vacate the office. In effect, the said order was made to give effect to the judgment in the instant case.
ISSUE 4
Whether the proceedings of the lower court and the orders made therein by the learned trial judge has (sic) not infringed on the Appellants’ right to fair hearing?
APPELLANTS’ ARGUMENTS
Counsel reiterated the point that the claimant/first respondent’s grouse against the defendant/respondent was that the re-screening exercise of March 30, 2010 was made during the pendency of their appeal. He did not, specifically, challenge the constitution of OSSIEC by the Governor or the appointment of the appellants as Chairman, Secretary and Members of OSSIEC.
That was why he did not join the appellants or the Governor who constituted OSSIEC in the suit
That notwithstanding, the court dissolved OSSIEC and ordered the appellants to vacate office. In effect, specific orders, which the appellants were expected to obey or have enforced against them, were made against them. In the circumstance, the court determined their civil rights, especially, as accrued to them by virtue of Section 199(1)(c) (supra), without giving them the opportunity of being heard, citing section 36(1) of the said 1999 Constitution; Tanko v UBA [2010] 11 SCM 199, 212; Victino Fixed odds Ltd. v Ojo and Ors [2010] 4 SCM 122, 135-138.
Against this background, he submitted that the proceedings of the lower court and the orders made therein are unconstitutional, wrongful, null and void being infringement on the appellants’ right to fair hearing.
SUBMISSIONS OF THE CLAIMANT/FIRST RESPONDENT
In arguing this issue, counsel adopted the arguments and submissions on issue 3 above in so far as they are relevant to the background of this issue four. He summed up the grievance of the claimant/first respondent against the defendant/respondent.
He contended that the defendant/respondent, being the confirming authority, embarked on an unconstitutional procedure in confirming the appointment of the nominees of members of OSSIEC. The result was that they failed to midwife a live body of the appellants. The net effect was that the status of appellants, as a body of OSSIEC appointed by the Governor, was not cognisable in law. They were, thus, incapable of being sued until the defendant/respondent, validly and legally, confirmed their appointment.
In his view, the constitutional role assigned to the Governor stopped at the appointment and there were no specific orders made against the Governor. In essence, the purported civil rights of the appellants, which could have accrued to them by virtue of section 199(1)(c) (supra), died before maturity. Those rights were, therefore, not justiciable under section 36(1) of the said Constitution.
On the other hand, counsel maintained that even if the appellants were entitled to the right to fair hearing, they could not be heard to complain of the denial of their rights. He observed that, in view of the depositions contained in the affidavit in support of Motion at pages 52-57 of the records, the appellants were, fully aware that there was a pending appeal against the judgment in suit no. HOS/M .41/2009 and an application for stay of execution. The pendency of those processes necessitated the protest of the claimant/first respondent against the said re-screening exercise. They took no steps to avail themselves of a hearing in the proceedings before the court, Okoye v NCFC ltd (supra) 501, 513 and 539 – 540.
He took the view that Tanko v UBA (supra) and Victino Fixed Odds Ltd v Ojo and Ors (supra) were inapplicable because the purported rights of the appellants had not crystallised in law to make them justiciable. Since their said appointment had not been confirmed in accordance with the constitutional provisions, they had no justiciable right to be heard. As such, the order dissolving OSSIEC was made to ensure justice in the case.
The judgment entered in favour of the claimant/first respondent would not have conferred any benefit if the trial judge had not made the orders, OSSIEC v AC (supra) 273 at 322-324. The lower court was, properly, constituted to entertain the suit and the orders made therein affecting the appellants were to ensure justice and are, therefore, constitutional, right and valid.
RESOLUTION OF ISSUES THREE AND FOUR
Two main strands of reasoning are identifiable in the submissions in issue three in the appellants’ brief. In the first place, it was pointed out that the case of the claimant/first respondent was against the proceedings of the defendant/respondent; hence the appellants were not parties to the case.
It was, also, contended that OSSIEC “of which the appellants are Chairman, Secretary and Members, respectively, is a constitutional statutory body by virtue of section 197 (1) (b) of the Constitution…. Also, by section 199 (i) of the Constitution, the appellants have a statutory tenure of office of five years.”
[paragraph iii, pages 15-16 of the appellants’ brief].
With respect, the above submission is premised on the erroneous assumption that once the Governor exercises his power of appointment under section 198 (supra), the beneficiaries of such appointment, automatically, constitute the executive body created in section 197 (1) (b) (supra) capable of enjoying the rights, privileges and perquisites of the offices therein. Indeed, it, completely, underrates the grammar of the statutory language deployed in section 198 (supra). The section provides that:
Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to the confirmation by a resolution of the House of Assembly of the State.
[italics for emphasis]
The implication of section 198 is that, although the Governor has the power to appoint suitable persons for the positions of Chairman, Secretary and Members, respectively, of the executive body in question; such appointments would remain inoperative until they are confirmed by a resolution of the House. In other words, the said appointments would remain inchoate until they receive the imprimatur of the House.
The phrase “subject to” is always employed when the draftsman intends that certain provisions shall be conditional upon compliance with certain requirements in the provision referred to.
In the con of section 198, the phrase “and the appointment shall be subject to the confirmation by a resolution of the House of Assembly of the State” is intended to subordinate the Governor’s power of appointment to the confirmation of the House. In other words, the endorsement of the House, by way of confirmation by a resolution, is a pre-condition to effectuating the Governor’s appointment. The above phrase has received so much judicial elucidation that its meaning can no longer be twisted by any form of verbal gymnastics.
The cases are so many and only one or two will be referred to here, Idehen v Idehen [1991] 6 NWLR (pt 198) 382, 418; Olowu v Olowu [1995] 3 NWLR (pt 13) 372; Tukur v Governor of Gongola State [1984] 4 NWLR (pt 117) 517; Olatunbosun v NISER (1998) 3 NWLR (Pt 80) 25; Aqua Ltd v Ondo State Sports Council [1988] 4 NWLR (pt 91) 622.
In effect, the requirement of the confirmation of the House is a hurdle, deliberately, erected by the Constitution to ensure checks and balances. In this instance, it is intended to afford the House the opportunity of scrutinizing the Governor’s nominees with a view to ensuring that persons so appointed are eligible to occupy the designated positions.
As shown above, the appellants submitted in 4 (v), page 16 of their brief] that the Governor’s appointment and the confirmation by the House are two separate actions. This may well be so, However, in constitutional parlance, the Governor’s exercise of his power of appointment is just the beginning of a journey into the composition of the said executive body: a journey that may, or may not, eventually, fructify, depending on whether or not the confirmation of the Governor’s said appointment, as required by the Constitution, is achieved.
Thus, such appointments would remain in the womb of the law and time until they are delivered through the imprimatur of the House. In the vocabulary of Medical Obstetrics, this journey, which was conceived via the exercise of the Governor’s power of appointment, would remain in its gestation until its constitutional midwifery through the consummation of the requirements of section 198 (supra). When thus, constitutionally, delivered, the said appointments would subsist for five years as ordained in section 199 (1) (c) (supra).
Put differently, no such appointment can take effect, that is, can benefit from the tenure stipulated in section 199 (1) (c) (supra) prior to the confirmation of the House of Assembly. In simple terms, until the said confirmation, as envisaged by the Constitution, the appellants cannot constitute OSSIEC for the purpose of enjoying the rights or bearing the burden (if any) associated with that constitutional body.
We, therefore, agree with the claimant that, before the said confirmation of the House, the appellants could not act in the offices of the Chairman, Secretary and Members of OSSIEC, respectively, as known to the Constitution and cannot sue or be sued virtute officii [that is, by virtue of that office]. By parity of reasoning, therefore, even as individuals, their claim to the tenure ordained in section 199 (1) (supra) is, entirely, contingent on the confirmation of their appointment under section 198 (supra).
Against this background, the contention of the appellants that they ought to have been joined in the suit is misconceived. As shown above, having merely been appointed by the Governor, the first leg of their journey to the assumption of responsibilities in the constitutional body known as OSSIEC had just begun. Until the House [the defendant/respondent] “follows the law and upholds due process in carrying out the assessment of the nominees in line with the constitutional provisions” [that is, until the House confirms the said appointment through the due processes stipulated in the Constitution], they cannot be recognized as Chairman, Secretary and Members, respectively, of the constitutional/statutory body [OSSIEC] created by virtue of section 197 (1) (b) (supra).
As such, until that is done, they cannot sue or be sued as such officers, that is, Chairman, Secretary and Members, respectively, of the said constitutional/statutory body [OSSIEC]. Equally, until then, they cannot enjoy the statutory tenure of office of five years allowed for the above positions under section 199 (1) (c) (supra). The argument that they ought to have been joined is thus not well taken. The case was simply against the defendant/respondent. At the risk of repetition, we reproduce the views of the lower court once more:
“…the court is not confused about its role which is merely to ensure that the Defendant follows the law and upholds due process in carrying out the assessment of the nominees in line with the constitutional provisions…It does not matter at this stage if all the nominees are qualified and their appointments deserve to be confirmed, based on the credentials they possess. The crucial issue is that the confirming authority unlawfully denied itself the opportunity of seeing those documents…The procedure adopted by the respondent in confirming the appointments of the nominees of members of [OSSIEC] on 24th March, 2009 is an infraction to (sic) the provision, spirit and intendment of the Constitution…” [italics for emphasis]
With regard to the submission relating to the alleged violation of the appellants’ right to fair hearing, we endorse the contention of the claimant that until the said executive body is, constitutionally, midwifed under section 198 (supra), the rights [being rights which would eventuate from the enjoyment of the constitutional tenure in section 199] would still be in nubibus [in the sky] or, at best, in gremio legis [in the womb of the law].
The appellants, also, complained in paragraph 4 (viii), page 16 of their brief that the court dissolved OSSIEC “when the claimant/respondent also did not challenge the appointment of the appellants made by the Governor.” With respect, this submission is misconceived. The exercise of the Governor’s power of appointment alone does not translate to the composition of OSSIEC.
That appointment, as already shown above, “shall be subject to confirmation by a resolution of the House of Assembly” [section 198]. The lower court had declared that “the procedure adopted by the respondent in confirming the appointments of the nominees of members of [OSSIEC] on 24th March, 2009 is an infraction to (sic) the provision, spirit and intendment of the Constitution…” [italics for emphasis].
The appellants were, thus, deemed not have been confirmed. As such, their appointment remained inchoate. Being inchoate, their appointment alone was not enough to catapult them into office as “Chairman, Secretary and Members of the Commission.”
The order, now being complained against, was consequential or incidental to the declaration of the voidity of the procedure adopted by the defendant/respondent. It was, thus, a proper order to give effect to its declaration that:
“The House of Assembly is a creation of law and should be reminded constantly on (sic) the need to follow the law. As I said earlier, the issues in dispute were still live questions in court, any step taken by the House of Assembly at least before that date is illegal, null and void.”
[page 163 of the record]
Having held that the procedure adopted by the House was illegal, null and void, the lower court, rightly, granted the consequential orders in question to give effect to the judgment, Liman v Mohammed [1997] 9 NWLR (pt 617) 116, 394; Atolagbe v Shorun [1985] 4 SC (pt 1) 250; [1985] 1 NWLR (pt 2) 360; Okupe v FBIR [1974] 1 All NLR 314; Obayagbona v Obazie (1972) 5 SC 247; Garba v UNIMAID [1986] 1 NWLR (pt 18) 550; OSSIEC and Anor v AC and Ors [2010] LPELR -SC.265/2009; [2010] 19 NWLR (pt 1226) 273, 322-324. We, therefore, find no merit in the appellants’ complaint in issues three and four.
ISSUE 5
Whether the learned trial judge was right in making orders in his judgment that were not part of the reliefs sought by the Claimant/Respondent in the Originating Summons before the court.
APPELLANTS’ ARGUMENTS
Counsel explained that the claimant/first respondent sought five (5) declaratory reliefs on the Originating Summons. The court granted specific orders which were not prayed for by ordering the dissolution of OSSIEC and ordering the appellants to vacate office. This, he asserted, was wrong, Osuji v Ekeocha [2009] 10 SCM 72, 100; Oduwole and Ors. v David West [2010] 6 SCM 174, 201; Ativie v Kabel [2008] 8 SCM 9, 105.
Attention was drawn to page 164 of the records where the lower court stated that it was counsel for the claimant/first respondent who asked for the dissolution of OSSIEC as a consequential order in his address. It was submitted that the further orders made by the lower court would not qualify as consequential orders, Osuji v Ekeocha (supra) at page 101.
CLAIMANT/FIRST RESPONDENTS SUBMISSIONS
Counsel for the claimant/first respondent observed that the lower court found that the conduct of the defendant/respondent was a clear affront to Order 11 Rule 1, Court of Appeal Rules (supra) and an abuse of the process of court. It, consequently, granted all the reliefs sought. It, finally, made a consequential order which compelled the appellants to vacate office.
He contended that the act of appointment [made by the Osun State Governor] and the act of confirmation [to be done by the defendant/respondent] are like Siamese twins whose existence is dependent on each other. As such, failure to confirm the appointment, as laid down by the Constitution, may not nullify but would not give the appellants the legal status of members of OSSIEC. He wondered why there was the need for the re-screening exercise to confirm the appointment of appellants as members of OSSIEC after the confirmation in suit. No. HOS/M.41/2009 was set aside.
He opined that the act of confirmation by the defendant/respondent, was a constitutional requirement which, if waived, would make the appointment of the appellants inchoate and not cognisable in law. He dismissed the submissions on the consequential orders as misconceived, Amaechi v INEC (2008) 5 NWLR (pt. 1080) 227, 345; OSSIEC v. AC (supra); Olufeagba v. Abdul-Raheem (2009) 18 NWLR (pt. 1173) 384, 464; Tukur v Government of Gongola State (1989) 4 NWLR (pt. 117) 517; F.R.N. v Osahon (2006) 5 NWLR (pt. 973) 361; Camptel International SPA v Dexson Ltd (1996) 7 NWLR (pt.459) 170; N.D.I.C. v Okem Ent. Ltd. (2004) 10 NWLR (pt 880) 107; Johnson v Mobil Prod (Nig) Unltd (2010) 7 NWLR (Pt1194) 462.
He submitted further that the Governor’s action in choosing the appellant for the position of members of OSSIEC was subject to confirmation by the defendant/respondent. Until that confirmation, the appointment creates no rights whatsoever for the appellants.
RESOLUTION OF ISSUE
The simple answer to the agitation of the appellants in this issue is that the court did not need the prompting of counsel to enter a consequential order which would effectuate its judgment. As we held, under the immediately preceding issues, the order, now being complained against, was consequential or incidental to the declaration of the voidity of the procedure adopted by the defendant/respondent. It was, thus, a proper order to give effect to its declaration that:
“The House of Assembly is a creation of law and should be reminded constantly on (sic) the need to follow the law. As I said earlier, the issues in dispute were still live questions in court, any step taken by the House of Assembly at least before that date is illegal, null and void.”
[page 163 of the record]
Having held that the procedure adopted by the House was illegal, null and void, the lower court, rightly, granted the consequential orders in question to give effect to the judgment. Liman v Mohammed [1997] 9 NWLR (pt 617) 116, 394; Atolagbe v Shorun [1985] 4 SC (Pt 1) 250; [1985] 1 NWLR (pt 2) 350; Okupe v FBIR [1974] 1 All NLR 314; Obayagbona v Obazie [1972] 5 SC 247; Garba v UNIMAID [1986] 1 NWLR (pt 18) 550; OSSIEC and Anor v AC and Ors [2010] LPELR -SC.265/2009; [2010] 19 NWLR (pr 1226) 273, 322-324. We, therefore, resolve this issue against the appellants.
ISSUE 6
Whether the learned trial judge was right in entertaining the suit and giving his judgment when the proper parties are (sic) not before him.
APPELLANTS’ CONTENTION
Counsel pointed out that by sections 197, 198 and 199 of the said Constitution (supra), it is the Governor of a State (in the instant case, the Governor of Osun State) that constitutes and makes appointment into the State Independent Electoral Commission (in the instant case, Osun State Independent Electoral Commission – OSSIEC). A person who is appointed into the Commission shall have a statutory tenure of office of five (5) years.
He contended that in any suit in which the constitution of the Commission or appointment of a person into the Commission is being challenged, or where an order will be made to dissolve the Commission or the person appointed into an office in the Commission to vacate the office, the appointing authority (the Governor) and the person to be ordered to vacate office (in this case, the appellants) are necessary parties to the suit.
In his view, this is because the interests of the appointing authority (the Governor of Osun State) and the appellants (members of OSSIEC) are directly affected by the suit and especially by the orders made therein dissolving OSSIEC and ordering the appellants to vacate office, Green v Green [1987] 7 SCNJ 256.
In this appeal, the appellants and the Governor of Osun State were not made parties to this suit in which judgment was given against them. On that ground, he contended, the proceedings and judgment of the lower court should be set aside.
He conceded that non-joinder per se would not lead to the setting aside of proceedings and judgment. However, he submitted that the instant case is different and distinguishable. The distinction herein is in the fact that the final decision in the proceedings has been made to directly affect the interest of other persons who were not parties to the suit and positive orders made against them.
He submitted that the power of a trial judge in the determination of a suit is limited to adjudicating between the parties actually before him, Order 13 Rule 16(1) of the Osun State High Court (Amended Civil Procedure) Rules, 2008.
Counsel insisted that, by the orders made for the dissolution of OSSIEC and that the appellants should vacate office, the lower court went beyond the matter in controversy as regards the rights and interest of the parties actually before it to determine the rights and interest of persons not parties before it – the appellants. This is beyond the jurisdiction of the court and renders the judgment perverse. Okoye v NCFCO Ltd [1991] 6 NWLR (pt. 199) 501, 532.
CLAIMANT/RESPONDENTS ARGUMENTS
On this issue, counsel for the claimant/ first respondent submitted that the lower court was right in entertaining the suit and giving judgment in the matter in controversy so far as regards the rights and interest of the parties actually before it, citing Order 13 Rule 16(1) Osun State High Court Amended (Civil Procedure) Rules, 2008.
He reiterated that the instant suit on appeal was an offshoot of suit No HOS/M41/2009. The two suits were instituted by Originating Summons. They turned on the construction and interpretation of the provisions of the Constitution of Nigeria 1999 (as amended) viz- a- viz the constitutional role assigned the defendant, [page 58-83 of the record], in the first instance and the conduct of the defendant/respondent towards the judgment contained therein afterwards. [pages 1-3; 157-166 of the record].
He submitted that the proper and necessary parties for the effectual determination of the subject-matter in controversy, so far as regards the rights and interest of the parties before the lower court, were the claimant/first respondent and the defendant/respondent and no more.
He, further, contended that the rights and interests accruable to the appellants by the combined effect of sections 197, 198 and 199 (supra) had not inured to confer on them and or cloak them with personality cognisable in law to be made parties; proper or necessary. This is so because the appointments of the appellants had not been legally and lawfully confirmed in accordance with the Constitution and so the statutory tenure of five (5) years in office would not start to run.
In his view, the interest of the appointing authority (the Governor of Osun State) was merely to choose the appellants for the office of the OSSIEC which was subject to the confirmation of the defendant/respondent and which interest was never in controversy in this suit.
He submitted further that the court was competent; properly constituted and the issue in controversy submitted for determination was within its jurisdiction. The court, filled with great concern for justice of this case, was right, correct and fair in is judgment now on appeal.
He maintained that even if appellants ought to have been joined, joinder and mis-joinder per se would not lead to the setting aside of proceedings and judgment, Okoye v NCFC Ltd (supra) at 532. However, counsel noted that Okoye v NCFC Ltd (supra) was not helpful to the case of the appellant, citing Madukolu v Nkemdilim (1962) 2 SCNLR 341 at page 532.
He submitted that, in the determination of question in the Originating Summons before the lower court, there was nothing to suggest that the names of the appellants were mentioned in person. He wondered what the appellants did when the claimant/respondent, protesting against their re-screening, walked out of the defendant/respondent on March 29, 2010 on the ground that the appeal was pending. He referred to the view of the lower court at page 166M of the records.
He submitted that there was no suggestion that any of them tried to be joined as a party but was denied his right to fair hearing as contemplated by section 36(1) of the 1999 CFRN as amended.
RESOLUTION OF THE ISSUE
At the risk of repetition, we re-iterate our earlier position that until the confirmation of their appointment, as envisaged by the Constitution, the appellants could not constitute OSSIEC for the purpose of enjoying the rights or bearing the burden (if any) associated with that constitutional body. Thus, before the said confirmation of the House, the appellants could not act in the offices of the Chairman, Secretary and Members of OSSIEC, respectively, as known to the Constitution and cannot sue or be sued virtute officii [that is, by virtue of that office].
Against this background, we endorse the submission of the claimant/respondent in paragraph 9. 04, page 26 of the brief. In our view, they rightly contended that the rights and interests accruable to the appellants, by the combined effect of sections 197, 198 and 199 of the Constitution (supra), had not inured to cloak them with the personality cognizable in law to be made parties, proper or necessary. The reason, as explained earlier, is that since the appointment of the appellants had not been confirmed by the House, as envisaged by the Constitution, the constitutional tenure ordained in section 199 (supra) was, at best, in the womb of the law.
Above all, as this court held [per Nweze JCAJ in Abishag Dan Habu v Isa (unreported judgment in CA/J/250/2010 delivered on June 27, 2012), Oputa JSC’s memorable classification of the typologies of parties into “proper parties”; “desirable parties” and “necessary parties” in Green v Green (1987) 3 NWLR pt 61, 480 will, always, remain ever green as an abiding testimony to His Lordship’s profound reasoning. Ever since then, the courts have, consistently, followed the definition of necessary parties in that case as those who are not only interested in the result, but, also, who in their absence, the proceedings cannot be fairly dealt with.
In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the party claiming to be a proper party to the action instituted by the plaintiff is joined, see, for example, O. K. Contact Point Holdings Ltd v progress Bank (Nig.) plc and Anor [1999] 5 NWLR (pt 604) 631, 634; AG, Federation v Ajayi (2000) 12 NWLR (pt 682) 509; Bello v INEC [2010] All FWLR (pt 526) 397, 444.
The situation in this case does not fit into that category. At page 80, the court explained that “this case is an attack on the procedure adopted by the defendant to undertake do (sic) the confirmation of the appointment of the nominees without recourse to the Constitution and not a challenge on (sic) the qualification of the nominees perse.” In our view, therefore, the non-joinder of the appellants could not have affected the proper determination of the question framed for the decision of the lower court in the Originating summons. We, therefore, resolve this issue against the appellant.
Having resolved all the issues against the appellants, we have no hesitation in dismissing this appeal. Appeal is, hereby dismissed. We must commend counsel for the parties for their effervescent interpretations of the constitutional provisions involved in this appeal. The judgment of the lower court is, hereby, affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading before now the well considered judgment of my learned brother, Nweze, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions, which I adopt as mine.
My comments are in respect of the effect of failure to serve Notice of Withdrawal on the respondents and the power of the court to grant consequential reliefs.
It was contended on behalf of the appellants in this appeal that the mere filing of a notice of withdrawal at the Registry of the High court without serving same on the other parties had the effect of terminating the appeal that was pending before this court.
The law is settled that where notice of any proceeding is required, failure to notify any party is an omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled. See: Scott-Emakpor v. Okavbe & Ors. (1975) 12 SC (Reprint) 31; Obimonure vs. Erinosho & Anor (1966), ALL NLR 250; Wema Bank Nig. Ltd. & Ors. Vs. Odutola & Ors. (2000) 7 NWLR (663) 1; (2000)3 SC 83.
While it is true that an appellant is at liberty to withdraw his appeal at any time before the hearing of the appeal, with or without the consent of the parties, the notice of withdrawal must be served on all the parties to the appeal before it can effectively dispose of same. See: Dingyadi vs. INEC (No. 1) (2010) NWLR (1224) 1 AT 49 – 50 C-D; 119 – 120 D-D; 124 – 25 H – B; 125 E-G; Dingyadi V. INEC (No.2) (2010) 18 NWLR (1224) 154 AT 184 – 185 H – F; 205 C-G; 213 – 214 C – B; Adeagbo v. Yusuf (1990) 6 NWLR (158) 588.
In effect, in the circumstances of this case the filing of the notice of withdrawal at the lower court without serving same on the parties had no effect whatsoever on the appeal pending before this court. The learned trial Judge was right in holding that the appeal was still subsisting.
Another issue raised by the appellants was that the learned trial Judge erred in granting a relief not sought by the 1st respondent in his Originating Summons i.e. he did not seek the dissolution of OSSIEC nor an order that the appellants should vacate their office. In the exercise of its wide powers under Section 6 (6) (b) of the 1999 Constitution (as amended) the court has inherent powers to grant consequential reliefs that would give effect to the its decision. See: Plisson Fisko Nig. Ltd. (1991) 1 NWLR (167) 270 at 288 B – C
The Supreme Court defined a consequential order thus:
“A consequential order is not one merely incidental to a decision, but one necessarily flowing directly and naturally from and inevitably consequent upon it. It must be giving effect to the judgment already given, not by granting a fresh or unproven relief… Nor can a consequential relief be properly made to give to a party entitlement to a relief he has not established in his favour.”
See also: Amaechi vs. INEC & Ors. (2008) 5 NWLR (1080) 277; Uba vs. Etiaba (2010) 10 NWLR (1202) 343 at 398 D – E.
In the instant case, as observed by my learned brother in the lead judgment, having held that the procedure adopted by the State House of Assembly was illegal, null and void, the court rightly granted the consequential order to give effect to its judgment.
It is for these and the more detailed reasons contained in the lead judgment that I also dismiss the appeal and affirm the decision of the lower court.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had a preview of the judgment just delivered by my learned brother, CHIMA CENTUS NWEZE JCA. I agree with the reasoning contained therein and the conclusions arrived thereat.
This is one of those political cases in which the PDP (majority) members of the House of Assembly Osun State played into the hands of the ACN (minority) members by not following the provisions of the Constitution to the letter in their attempt to confirm the appellants as Chairman, members and Secretary of the Osun State Independent Electoral Commission (OSSIEC). By Section 198 of the Constitution of the Federal Republic of Nigeria, appointment of Chairman and members of OSSIEC is by the Governor of the State subject to confirmation by a resolution of the House of Assembly. Section 200 of the Constitution makes provision for the qualifications of members of OSSIEC. To enable the defendant/respondent (Osun State House of Assembly) assess the qualifications of those appointed by the Governor (the appellants), they were asked to present their credentials. Some of the appellants failed to supply their credentials. The PDP majority members of the defendant/respondent non-the-less confirmed their appointment. The ACN minority members staged a walk out and went to court to seek redress. In the meantime the members of OSSIEC were sworn into office by the Governor. The Claimant/Respondent on behalf of the ACN members of the House filed a suit by Originating Summons in suit no HOS/M41/2009 claiming inter alia that the purported confirmation of the appointment of the Chairman and members of OSSIEC is irregular, unconstitutional, null, and void and of no effect. The Court gave judgment in their favour and nullified the screening exercise of OSSIEC conducted by Osun State House of Assembly. Aggrieved by the decision of the court, the Defendant (Osun State House of Assembly) filed an appeal and followed it up with an application for stay of execution of the judgment. While the application for stay of execution was pending, the Defendant/Respondent filed a notice of withdrawal of the appeal but the notice of withdrawal filed at the registry of the lower court did not disclose any address for service and was never served on the Claimant/Respondent. Fresh invitation was issued to the appellants to appear for screening. Their appointment was reconfirmed and they were re-sworn into office by the Governor. The Claimant/Respondent on behalf of ACN members of the House went back to court in suit no HOS/M.70/2010 to challenge the notice of withdrawal of the appeal on the ground that it was not served on the Claimant/Respondent as required by Order 11 Rules 1, 2, 4 and 5 of the Court of Appeal Rules 2007. Their contention was that the notice of withdrawal being incompetent, the re-screening and re-confirmation of the appellants was done while the appeal filed by the appellants was still pending and consequently was irregular, null, void and abuse of court process. The learned trial Judge granted all the reliefs sought by the Claimant/Respondent and also granted a consequential relief by ordering the dissolution of the OSSIEC and the appellants to vacate office forthwith. The appellants with the leave of the Court then filed this appeal. The issues formulated by the parties are set out in the lead judgment and were completely and effectively resolved. I wish to make a brief comment on the issue of non-service of the notice of withdrawal of the appeal on the Claimant/Respondent.
Both sides I think are fully aware and understand that if the appeal filed by the appellants after the decision of the Court in HOS/M41/2009 was not effectively withdrawn and was actually still pending at the time of the second screening and confirmation of the appellants, then indeed the screening and confirmation would be irregular and an abuse of court of process.
The provisions of Order 11 of the Court of Appeal Rules 2007 on withdrawal of appeals are quite clear. Order 11 (1) says that an appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar, a notice to the effect that he does not intend to prosecute the appeal any further. Service on the parties is absolutely imperative for the withdrawal to be effective. The finding of the trial judge was that the original copy of the notice of withdrawal in the case file had no address for service on the defendant and indeed no proof of service. The notice of withdrawal was therefore not served on the defendant. In their argument that their appeal was properly withdrawn, the appellants relied heavily on the case of Ezemo v. AG Bendel State (1986) 4 NWLR (Pt. 36) 448. The Claimant/ Respondent is right in his submission that the case is inapposite because therein the appellant filed the notice of withdrawal and properly effected service of same on the respondent. Failure to serve the defendant consequently rendered the notice of withdrawal incompetent with the result that the appeal was still pending when the defendant/respondent attempted the second screening and confirmation of the appellants. For this reason and the more detailed reasons compendiously and lucidly set out in the lead judgment I also hold that the decision of the trial judge in suit no HOS/M.70/2010 is sound and cannot be faulted. I also dismiss the appeal and I abide by the consequential orders made in the lead judgment.
Appearances
M. O. OkediyaFor Appellant
AND
T. S. Adegboyega for the claimant/first respondentFor Respondent
