HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & ORS v. HON. TIMOTHY OWOEYE & ANOR(2017)

HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & ORS v. HON. TIMOTHY OWOEYE & ANOR

In The Supreme Court of Nigeria

On Friday, the 3rd day of March, 2017

SC.102/2013

RATIO

DUTY OF THE COURTS TO DO JUSTICE AND REFRAIN FROM DELVING INTO THE ERROR OF TECHNICALITIES

Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed in a long line of authorities, for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) V. JOHNSON (2007 49 W.R.N. pages 169-170 where Per Odili JCA (as he then was) opined as follows: “….The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to non pursue the course of substantial justice. See MAKERI SMELTING CO. LTD. V. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT. 766) 411 at 476-417. The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because, blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.” See also AJAKAIYE V. IDEHIA (1991) 8 NWLR (PT. 364) 504, ARTRA IND. LTD. V. NBC (1997) 1 NWLR (Pt. 483) 574, DAKAT V. DASHE (1997) 12 NWLR (PT. 531) 46, BENSON V. NIGERIA AGIP CO. LTD (1982) 5 S.C.1. PER SIDI DAUDA BAGE, J.S.C.

HOW AN APPEAL COULD BE WITHDRAWN

The law is settled that an appeal could be withdrawn by filing a notice of intention to discontinue or withdraw. See the cases of DALFAM (NIG.) LTD V. OKAKU INTERNATIONAL LTD (2001) 15 NWLR (Pt. 735) 203 at 250, LENAS FIBREGLASS LTD. VS FURTODO (1997) 8 NWLR (Pt. 504) 220 at 231, ERONINI V. IHENKO, (1989) 2 NWLR (Pt.101) 56 at 63; (1989) 20 N.S.C.C. 503 at 520. UNIVERSITY OF LAGOS V. AIGORO (1985) 1 S.C. 265 at 271 and UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 S.C. 295. PER SIDI DAUDA BAGE, J.S.C.

ESSENCE OF FILING AND SERVICE OF A COURT PROCESS

Filing and service of a process have different legal essence. By Filing, a party crystallizes a legal process for the attainment of specific objective in judicial proceedings. Service is intended as notice to the other party and does not vitiate a judicial process duly initiated except that the attainment of the objective might be put in abeyance without proper or valid service. See the cases of AJIBOLA V. SOGEKE (2001) 23 W.R.N.68 at 88, SAIDU V. MAHMOOD (1998) 2 NWLR (Pt. 536) 130 at 138 and NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LTD. V. LADUN MARTINS (1969) 1 A.N.L.R. 469 at 473. PER SIDI DAUDA BAGE, J.S.C.

MEANING AND NATURE OF AN ABUSE OF COURT PROCESS

This Court has succinctly enunciated in NTUKS VS NPA (2007) 13 NWLR (Pt. 1051) page 392 on the meaning of abuse of Court process and held that: “Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.” Per Tobi, J.S.C.” Furthermore, in CHIEF VICTOR UMEH & ANOR VS PROFESSOR MAURICE IWU & ORS (2008) Vol. 41 WRN 1 at 18 lines 5-10 (SC) this Court enunciated on what abuse of process connotes and attitude of Courts to suit filed in abuse of process thus: “It is settled law that generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. See OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 996) 205 and OKAFOR VS ATTORNEY-GENERAL OF ANAMBRA STATE (2001) 7 WRN 77; (2001) FWLR (Pt.58) 1127; (1991) 6 NWLR (Pt. 200) 659; (1991) 9-10 SCNJ 107. The bottom line of these authorities in regard to abuse of process is that, to institute an action during the pendency of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is to put an end to the suit… Per Chukwuma Eneh and Onnoghen, JSC. PER SIDI DAUDA BAGE, J.S.C.

EFFECT OF AN ORDER OF COURT MADE AGAINST A PERSON WHO IS NOT JOINED AS A PARTY

The effect of order(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, Counsel to the Appellants was right to have submitted at pages 12 and 13 of his brief of arguments, that where person who ought to be joined to the suit had orders made against them by the trial judge, such proceedings ought to be a nullity, being a denial of the Appellant’s right to fair hearing. See the case of OVUNWO & ANOR V. WOKO & ORS (2011) 7 SCM 207 at 231-232 and NURTW & ANOR V. RTEAN & ANOR (2012) 3 SCM 171 at 178-179. PER SIDI DAUDA BAGE, J.S.C.

WHETHER ADDRESS OF COUNSEL CAN BE A SUBSTITUTE FOR PLEADINGS OR HARD EVIDENCE

The law is settled that, no matter the length and logic, submissions of Counsel cannot substitute for pleadings or hard evidence. On this position, we refer to the case of CALABAR CENTRAL CO-OPERATIVE THRIFT AND CREDIT SOCIETY LIMITED & 2 ORS VS BASSEY EKPONG EKPO (2008) 25 WRN 1; (2008) 1-2 SC. 229; (2008) 6 NWLR (Pt.1083) 362. According to Ogundare, JSC: “Arguments of counsel, however brilliant is no substitute for the pleading and evidence in proof of same and therefore ground to no issue.” PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD)
2. CHIEF REMI ALABI
3. BARRISTER EZEKIEL OGUNJUYIGBE
4. HON. ADEBISI GBOLAGADE
5. ALHAJI RASAK ADEGBILE
6. SURVEYOR AKINBOYE OGUNOLA
(Chairman and members of Osun State Independent Electoral Commission) Appellant(s)

AND

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)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Court of Appeal Akure Judicial Division sitting in Akure delivered on 29th November, 2012 in appeal No. CA/AK/31M/2011. The Appellants had in the appeal before the Court of Appeal appealed against the Judgment of the Osun State High Court, Oshogbo Judicial Division sitting in Oshogbo in Suit No. HOS/M.70/2010 delivered by Hon. Justice S.O. Falola on 3rd December, 2010. The Claimant/Respondent in this appeal instituted the action at the High Court against the Defendant/Respondent to this appeal by way of Originating Summons claiming five declaratory reliefs. The Originating Summons, and the reliefs claimed are as follows:

ORIGINATING SUMMONS
“LET THE DEFENDANT within forty two days after the service of this summons on him inclusive of the day of such service cause an appearance to he entered for him to this summons which is issued upon the application of the claimant of Osun State House of Assembly quarters, Osogbo for the determination of the following questions:
1. Whether the screening of the Chairman and members of OSSIEC during the

pendency of appeal in Suit No. HOS/M.41/2009 is not improper, incompetent, null and of no effect.
2. Whether the screening of the Chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is not an abuse of Court.
3. Whether taking into consideration the combined Order 11 Rules 1, 2, 4, and 5 of the Court of Appeal Rules, 2007, the notice of withdrawal dated the 27th day of March, 2010 automatically terminated the appeal filed by the Appellant in this case. (sic)
4. Whether the filing of a stay of execution of a Judgment by a party against whom the Judgment is given has not put the judgment in abeyance until the ruling on the application is delivered.
5. Whether an appeal properly filed at the High Court registry is for onward transmission to the Court of Appeal and could be properly terminated at the same High Court Registry by mere filing a notice of withdrawal of Appeal.
WHERE OF the plaintiff claims as follows:
1. A declaration that the screening of chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is improper, incompetent, null and void and of no effect. <br< p=””

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A declaration that the screening of the Chairman of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is an abuse of Court process.
3. A declaration that, taking into consideration the combine effects of Order 11 Rule 1, 2, 4 and 5 of the Court of Appeal Rules 2007, the notice of withdrawal of appeal dated the 27th day of March, 2010 cannot automatically terminated the appeal filed by the Appellant in this appeal. (sic)
4. A declaration that the filing of an application for stay of execution of judgment delivered on 25th day February, 2010 by the defendant against whom the judgment is given has put the judgment in abeyance until the ruling on the application for stay of judgment is delivered.
5. A declaration that an appeal properly filed at the High Court Registry is for onward transmission to the Court of Appeal and cannot be terminated before the same High Court by merely filing a notice of withdrawal of appeal.”SUMMARY OF FACTS
In the early part of March 2009, the Executive Governor of Osun State appointed the first to the sixth Appellants as Chairman. Secretary and Members respectively of the Osun State

Independent Electoral Commission (OSSIEC). The list was transmitted to the Osun State House of Assembly (OSHA), who are the Defendants/Respondents, for confirmation.

On 24/3/2009, the Appellants appeared before the Osun State House of Assembly (the Defendants/Respondents) for screening for the constitutional purpose of confirmation of their appointments. The Appellants supplied their respective Curriculum vitae within a relatively short notice. Only two of the Appellants submitted their Credentials together with the Curriculum Vitae for screening and confirmation to Osun State House of Assembly. The Claimant/Respondent maintained that without the submission of Credentials by all the Appellants, the allied issue of Screening and Confirmation should not hold. That position was over-ruled by the majority and by majority votes of its members, the OSHA (the Defendants/Respondents) confirmed the appointments of the Appellants. The Governor proceeded to swear in the Appellants on April 3rd, 2009, as Chairman, Secretary and Members of OSSIEC respectively.

The Claimant/Respondent and some members of Action Congress in OSHA were dissatisfied with the procedure

followed in confirming the Appellants. The Claimant/Respondent thereafter commenced an action by way of Originating Summons before the Osogbo High Court in Suit No. HOS/M.41/2009 – HON. TIMOTHY & ORS VS OSUN STATE HOUSE OF ASEMBLY. The claimants sought for five declaratory reliefs. The Defendant/Respondent filed a defence. The trial Court Osogbo State High Court sitting at Osogbo) passed its Judgment on 25/2/2010, granting the reliefs claimed. In other words, Judgment was in favour of Claimant/Respondent.

Unfavoured and aggrieved by the Osun High Court Judgment (under the Superintendence of Hon. Justice S.O. Falola), the Defendant/Respondent, the OSHA, appealed to the Court of Appeal, Akure Division. The Defendant/Respondent also applied for Order of stay of execution of the High Court’s judgment which was later abandoned. The application of stay of execution was sought before the High Court itself. In a rather dramatic twist of events, the Defendant/Respondent followed its Application for stay of execution with a Notice of the withdrawal of the appeal and subsequently issued forth fresh invitation to the already “Sworn-in” members of OSSIEC for fresh screening and confirmation exercise. On 30/3/2010,

the Defendant/Respondent, by majority vote, confirmed the appointment of the Appellants. The Governor of the State swore them for the second time on 1/4/2010. There was, as it were, a clear re-think by the Defendant/Respondent as to the legality or propriety of its earlier actions.

The Claimant/1st Respondent sought to contest the new position and action of the Defendant/Respondent by instituting another suit of the High Court, Osogbo – SUIT NO. HOS/M.70/2010 – HON. JUSTICE TIMOTHY OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY.

In the new suit, he contested the legal validity of the Notice of Withdrawal of the appeal against the Judgment of the Osun High Court, Osogbo, Suit NO. HOS/M.41/2009. He averred that the said Notice was technically incapable of terminating the appeal because it was incompetent for want of service. He contended that both the appeal and application for stay of execution were still valid and subsisting.
Accordingly (and consequently), he argued that the new screening and re-confirmation were irregular and constituted an abuse of Court process.

The Osun State

High Court, Osogbo, agreed with the Claimant/Respondent and accordingly invalidated the said Notice of withdrawal and granted all reliefs claimed by the Claimant/Respondent. The Osun High Court made a further order dissolving the OSSIEC and directed the Appellants in the case before us to vacate their respective offices.

It is noteworthy at this juncture that the Appellants are not Parties at the trial Court. It was after trial Courts Judgment that they sought leave of the lower Court to lodge an appeal against the said judgment as interested parties before it. The Appellants proceeded on appeal to the Court of Appeal, Akure, Judicial Division. They presented Six Grounds of Appeal and formulated six issues therefrom for the determination of the appeal.

The Court of Appeal resolved all six issues presented before it against the Appellants. It dismissed their Appeal in its Judgment of 29/11/2012.

The Appellants were dissatisfied with the Court of Appeal’s decision and accordingly filed a Notice of Appeal before this Court containing three (3) Grounds of Appeal. Each of these Grounds is supported by a number of details (or particulars) to

explain the respective arguments. Three (3) forms of Reliefs are being sought before this Court by the Appellants. The Appellants Relief of Argument raises four (4) issues for determination by this Court. Arguments and submission are equally articulated respecting the issues.

ISSUES FOR DETERMINATION
“The Appellants humbly submit the following issues for determination of this appeal.
(1) Whether the learned Justices of the Court of Appeal were right in upholding the decision of the learned trial judge on the ground that the notice of withdrawal of appeal filed by the Defendant/Respondent against the Judgment of the High Court in suit No. HOS/M.41/2009 HON. TIMOTHY OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY was not served on the Claimant/Respondent.
(Relate to Ground 1 of the Grounds of Appeal)
(2) Whether the learned Justices of the Court of Appeal were right in their decision that the Appellants have no interest in the matter of the suit before the trial Court and that the proceeding is not a breach of the Appellants right to fair hearing.
(Relate to Ground 2 of the Grounds of Appeal)
(3) Whether the learned Justices

of the Court of Appeal were right in upholding the decision of the trial Court dissolving OSSIEC on the basis that the screening and confirmation exercise cannot be done when the Defendant/Respondent’s appeal against the Judgment in suit No. HOS/M.41/2009 is still pending.
(Relate to Ground 3 of the Grounds of Appeal)
(4) Whether the order dissolving OSSIEC and ordering the Appellants to vacate office made by the learned trial judge and upheld by the Court of Appeal can appropriately be qualified as a consequential order in view of the circumstances of this case.”
(Relate to Ground 4 of the Grounds of Appeal)

In his brief of argument and oral presentation before this Court, learned Counsel to the 1st and 2nd Respondents aligned with and adopted the issue for determination as formulated by the Appellants.

After a careful perusal of the four (4) Issues proposed by the learned counsel for the Appellant, which the 1st and 2nd Respondents adopted mutatis mutandis, in the opinion of this Court, only two main issues arise for the just determination of this appeal. The said issues capture all the grounds of the appeal. The two (2) issues are

as follows:-
“1) Whether the learned Justices of the Court of Appeal were correct in upholding the decision of the trial Court that the notice of withdrawal filed by the Appellants against the judgment of the High Court in Suit No. HOS/M.41/2009 was not served on the Claimant/Respondent.
2) Whether the learned Justice of the Court of Appeal were right in upholding the decision of the learned trial Judge that the Appellants have no interest in the matter before the trial Court and that the proceedings did not breach the Appellants right to fair hearing.
ISSUE 1
Whether or not the learned Justices of the Court of Appeal were correct in upholding the decision of the trial Court that the notice of withdrawal filed by the Appellants against the Judgment of the High Court in suit No. HOS/M.4/2009 was not served on the Claimant/Respondent.”

The gravamen of the submission of learned Counsel to the Claimant/Respondent and the 2nd Respondent respectively placed before us at pages 5-9 of the two Respondents briefs on issue 1 is that, the Notice of withdrawal of the appeal filed by the Appellants under Order 11 Rule 1 dated 29th March, 2010

was not a valid withdrawal due to non-service.

Let me pause to register our observation on the duplicitous briefs of the two Respondents, which are similar in content and con, appearing verbatim and serialization as in the example of pages 5-9 of the arguments on issue one. This is a point to note in advocacy and brief writing. The 2nd Respondent, knowing it has nothing different to canvass in its brief would at best have adopted or rested its position on that of the Claimant/Respondent as against seeming and obvious plagiarism. We reckon with the date of filing as against purposive dates the documents were signed. The 1st Respondents Brief is dated 24th June, 2013 while the date of the 2nd Respondents brief is 13th, May 2014 and filed on 5th May 2014, almost a year after the 1st Respondents brief which it copied almost verbatim. It paints a picture of a needless, afterthought recourse of a less diligent legal officer.

That said, the flip side of the argument on issue 1 is laid-out at Page 6 – 9 of the Appellants brief of arguments. In essence, counsel contend that the issue of non-service of the notice of withdrawal could

have been made an issue at the Court of Appeal.

Those are the divergences of the positions of the Appellants and Respondents as far as issue 1 is concerned. Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and con.
We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed in a long line of authorities, for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) V. JOHNSON (2007 49 W.R.N. pages 169-170 where Per Odili JCA (as he then was) opined as follows:
“….The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to non pursue the course of substantial

justice. See MAKERI SMELTING CO. LTD. V. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT. 766) 411 at 476-417.
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because, blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
See also AJAKAIYE V. IDEHIA (1991) 8 NWLR (PT. 364) 504, ARTRA IND. LTD. V. NBC (1997) 1 NWLR (Pt. 483) 574, DAKAT V. DASHE (1997) 12 NWLR (PT. 531) 46, BENSON V. NIGERIA AGIP CO. LTD (1982) 5 S.C.1.

A number of points have been made that would inform our final decision on this issue. Save for disputing and denying service and non-service, the parties are ad idem that a Notice of Withdrawal was indeed filed dated 29th March, 2010 before the fresh invitation and clearance of Appellants for confirmation on March 30, 2010 and fresh swearing-in by the then Governor on 1st April, 2010.

The cause of action of the

Respondents, as originally canvassed in Suit No. M.41/2009 (HON. OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY) by way of originating summon was, and remained, the procedural irregularities in the initial screening of the Appellants on 24th March, 2009 despite failure to present (enough) copies of their credentials contrary to the provisions of Section 106 and 200 (1)(a) of the 1999 Constitution.

It does not appear to us that the basis of the tussle has shifted or lost its original natural colours. What remains certain is that, upon the judgment of 25th February, 2009 nullifying the initial confirmation, an appeal was filed alongside a motion for stay of execution. But about a year later, the Appellants had a rethink and opted to regularise the process of screening and confirmation, being the basis of the dispute. To effectuate this, a Notice of Withdrawal was filed in the registry to terminate the appeal, but the Respondents insisted on being sued on the supposed, misconceived notion that a party who voluntarily opted to sheath his sword could not do so. The law is settled that an appeal could be withdrawn by filing a notice of intention to discontinue or

withdraw.
See the cases of DALFAM (NIG.) LTD V. OKAKU INTERNATIONAL LTD (2001) 15 NWLR (Pt. 735) 203 at 250, LENAS FIBREGLASS LTD. VS FURTODO (1997) 8 NWLR (Pt. 504) 220 at 231, ERONINI V. IHENKO, (1989) 2 NWLR (Pt.101) 56 at 63; (1989) 20 N.S.C.C. 503 at 520. UNIVERSITY OF LAGOS V. AIGORO (1985) 1 S.C. 265 at 271 and UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 S.C. 295.

The objective of notice of termination in the instant appeal is to voluntarily put an end to a judicial process or terminate the objective for seeking judicial remedies. A party should

not be crucified for conceding defeat or bowing out of a fight, where, anticipatorily, he is set to be the loser. The Claimant Respondent in this case opted to continue to fight a shadow in this case. Had the Claimant/Respondent herein being interested in Defendant/Respondent’s appeal against the judgment in HOS/M.41/2009 he could he could have followed through the process of appeal by compiling the record of appeal and transmitting same to the Court of Appeal within the time permissible with the Court of Appeal Rule and enable the Court of Appeal to assume jurisdiction rather than filing a new suit to ventilate his grievances against the procedural infraction. After all, the duty to compile record is not restricted to the person appealing but also to the Respondent in an appeal. Were this step taken by the Claimant Respondent in this case needless litigation would have been avoided and the issue of withdrawal of appeal would have settled once and for all by the Court of Appeal timeously.

Seeking to stop further confirmation of the Appellants despite rectification of initial procedural irregularities or gaps would appear to mean that the Respondents

had a mission or objective different from their initial cause of action in Suit No. HOS/M.41/2009, which was to ensure compliance with the conditions precedent to confirmation of the Appellants. The Claimant/Respondent desired that the Defendant/Respondent should comply with the Judgment of the Court in Suit No. HOS/M.41/2009 by remedying procedural irregularities. It would appear inconsistent on the part of the Claimant/Respondent to insist that the Defendant/Respondent cannot voluntarily withdraw their appeal after swallowing its pride to do what the Respondent had insisted must be done before their confirmation could be said to be valid.

Against, the background of this case, it is rather amazing that Claimant/Respondent and Defendant/Respondent who were adversaries in HOS/M.41/2009 in their Briefs before this Court maintained the same position and insisted in a rather contradictory manner, that the Appellants could still not be confirmed and/or sworn-in as did on 30th March and 1st April by the House of Assembly and the then Governor of Osun State respectively. This is the misconceived basis for which another action (Suit HOS/M.70/2010) was instituted.

This patently is a reckless abuse of judicial process that should be discouraged to avoid needless overburdening of the already burdened judiciary. The Courts have opined severally and unambiguously on what constitutes an abuse of process (authorities or abuse of Court processes).

The Respondents have admitted, and abundance of documentary evidence in the Record of appeal and briefs of arguments also indicate the existence of Suit No. HOS/M.41/2009 is uncontroverted. But the Respondents, particularly the Claimant/Respondent, would want us to join him on the misguided frolic of assumption that the later suit, M.70/2010 became inevitable as the Appellants had blundered by withdrawing the appeal against the earlier suit without ensuring service. Clearly, we cannot sit on this side of the hall and encourage litigant to take judicial sanctity for granted. The existence of a suit on appeal, and the fact that the Claimant/Respondent had earlier objected to the non-service of Notice of Withdrawal on him shows that issues had been joined. The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the

other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of Court process.

recklessness.”
Per Tobi, J.S.C.”
Furthermore, in CHIEF VICTOR UMEH & ANOR VS PROFESSOR MAURICE IWU & ORS (2008) Vol. 41 WRN 1 at 18 lines 5-10 (SC) this Court enunciated on what abuse of process connotes and attitude of Courts to suit filed in abuse of process thus:
“It is settled law that generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue.
See OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 996) 205 and OKAFOR VS ATTORNEY-GENERAL OF ANAMBRA STATE (2001) 7 WRN 77; (2001) FWLR (Pt.58) 1127; (1991) 6 NWLR (Pt. 200) 659; (1991) 9-10 SCNJ 107. The bottom line of these authorities in regard to abuse of process is that, to institute an action during the pendency of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is to put an end to the suit
Per Chukwuma Eneh and Onnoghen, JSC.”

The act of filing another suit by the Respondents in suit No. M.70/2010 is reprehensible. If strongly aggrieved, a conscionable litigant in an assumed ongoing appeal from a similar Suit (HOS/M.41/2009)

would have, through Counsel, pursued the appeal as earlier stated and make the issue of non-service a distinctive ground and seek relief(s) to set aside the proceedings of 30th March and 1st April by the House of Assembly and the then Governor of Osun State respectively. Not doing so makes the new suit unnecessary and unconscionable. Put differently, filing another suit while the validity or otherwise of the withdrawal of the appeal was pending amounted to cherry-picking. The Respondents, by so doing, have constituted themselves into judicial nuisances by assuming that withdrawal of the appeal filed against suit No. HOS/M.41/2009 was invalid and that the best way to vent their misgivings was to file yet another action, Suit No. HOS.M.70/2010.

In view of the foregoing, Issue 1 is resolved in favour of the Appellants. Since appeal had not been entered at the Court of Appeal at the time of filing the Notice of Withdrawal, the filing of same at the lower Court clearly and effectively puts an end to the appeal. The decisions in EZOMO VS ATTORNEY-GENERAL BENDEL STATE (1986) 4 NWLR (Pt. 36) and GOVERNING COUNCIL OF ITF VS CHIJIOKE (1998) 3 NWLR (Pt. 540) 170 are

applicable and are hereby applied. Issue 1 is resolved in favour of the Appellants.

ISSUE 2:
“Whether or not the learned Justice of the Court of Appeal were right in upholding the Decision of the learned trial Judge that the Appellants have no interest in the matter before the trial Court and that the proceedings did not breach the Appellant’s right to fair hearing.”

The 1st Respondent argued issue 2 at pages 9-11 of his brief. The 2nd Respondent also made similar repetitious submissions on the same pages (9-11) of its brief in a way and manner similar to 1st Respondent.

Relying on TOOGU V. OPUTA (2001) 16 NWLR (Pt. 940) at page 585, the 1st and 2nd Respondents respectively at page 10, Paragraph 4.08 and page 10, Paragraph 4.06 of their brief is that, I quote:-
” It is only when Section 198 CFRN is duly complied with by the House of Assembly, that right to the Appellant under Section 199 of the Constitution become established right of the Appellant as Chairman and members of OSSIEC.”

The Appellant’s brief of argument encapsulates issue 2 on pages 10-11. The Appellants contended that the Court of Appeal was wrong. <br< p=””

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Learned Counsel to the Appellant in his Brief of Argument submitted that:-
“It is our humble submission that from the facts of this suit at the time the Claimant/Respondent filed his action, the right of the Appellants as Chairman, Members and Secretary of OSSIEC had already accrued. The due process for their appointment and confirmation under Section 198 and 199 of the Constitution have been complied with.
Contrary to the decision of the Court of Appeal, we submit that the appointment of the Appellants as at the time Claimant/Respondent filed this suit to challenge the screening exercise conducted by the Defendant/Respondent on March 30th, 2010 was no longer inchoate. It has become substantive.”

The right of the Appellants to enjoy this constitutionally guaranteed right is primary, and cannot be ignored by any Court in assuming jurisdiction to make judicial orders or other forms of adjudicatory determinations without joining them as parties. Doing so will vitiate the entire proceedings as in the instant appeal.
The right to fair hearing is well established and entrenched in our constitutional jurisprudence and indeed enjoys universal

appeal and application in view of its constitutional and fundamental importance. Indeed Section 36(4) CFRN 2011 (as amended) clearly embodies two traditional maxim to wit: audi alteram partem (the other party must be heard) as held in to the locus classicus of R V. THE UNIVERSITY OF CAMBRIDGE (1723) S.128 and nemo judex in causa sua (a person shall not be a judge in his own case. See also GARBA & ORS. V. THE UNIVERSITY OF MAIDUGURI (1986) 2 S.C. 128.

It is abundantly clear that Suit No. HOS.70/2010 was a protest suit of the Respondent against seeming improper withdrawal by the Appellants of the appeal against the earlier Suit No. HOS/M.41/2009. As at 30th March, 2010 the Appellants had been re-screened and reconfirmed. They were also sworn-in by the then Governor of Osun State on 1st April, 2010. Assuming the latter acts of fresh confirmation and swearing-in were wrong and improper, putatively, their right and interests as Chairman, Members and Secretary of OSSIEC is in issue and at stake. Therefore, logic or common reasoning would ordinary dictate, or ought to have dictate that, beyond woolly misconception or political desperation, no

reasonable reliefs could be sought or granted without joining them as parties. Refusal to join them as interested parties while expecting them to comply with the judgment to cease functioning in such capacities is to say the least, overly presumptive and judicially wrong.

Beyond cavil, it is our considered opinion, following a line of settled principles of law and decided authorities, that Appellants are persons interested in the suit and ought to have been joined as necessary parties by the trial Court because all the reliefs being sought are directed at the right and interest of the Appellants. See GREEN V. GREEN (SUPRA).

In view of the foregoing, we are unable to subscribe to the reasoning of the Court of Appeal as contained in the last two paragraphs of their Judgment at page 43 (365 of the record). This is because question one and relief one of the originating summons leave no one in doubt that the essence is to get at the Appellants as far as the exercise of their function and duties as Chairman, Member and Secretary of OSSIEC are concerned. I quote question one and relief one of the 1st Respondent’s Originating Summons dated 29th June, 2010

in Suit No. HOS/M.70/2010:
“Whether the screening of Chairman and Members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is not improper, incompetent and null and void.
A declaration that the screening of Chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is improper, incompetent and null and void.”

There should be not shying away from the reality or realization of the fact that the Appellants are the Chairman and Members of OSSIEC envisaged in question one and relief one, and by logical inference, the entirely of Suit No. HOS/M.70/2010, as they were the target in Suit No. HOS/M.41/2009 in which they were likewise excluded.

Without dissipating precious time and energy, being luxury ‘goods’ that are hardly ever available at this end of the Nigerian Judicial Hierarchy, we also resolve issue 2 in favour of the Appellants for the foregoing reasons.

We had noted earlier in this judgment that counsel to the Appellants and 1st and 2nd Respondents formulated two extra issues as issues 3 and 4 thus:-
ISSUE 3:
“Whether or not the learned Justices of the Court of Appeal were right

in upholding the decisions of the trial Court dissolving the Osun State Independent Electoral Commission (OSSIEC) on the basis of screening and confirmation exercises carried out while the Defendant/Respondent’ appeal against the Judgment is pending.”
ISSUE 4:
“Whether the order dissolving OSSIEC and ordering the Appellants to vacate office made by the learned trial Judge and upheld by the Court of Appeal can appropriately be qualified (sic) as a consequential order in view of the circumstances of this case.”

To all intent and purposes, issues 3 and 4 would necessarily be subsumed in issues 1 and 2 already dealt with above. The effect of order(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, Counsel to the Appellants was right to have submitted at pages 12 and 13 of his brief of arguments, that where person who ought to be joined to the suit had orders made against them by the trial judge, such proceedings ought to be a nullity, being a denial of the Appellants right to fair hearing. See the case of OVUNWO & ANOR V. WOKO & ORS (2011) 7 SCM 207 at 231-232 and NURTW & ANOR

RTEAN & ANOR (2012) 3 SCM 171 at 178-179.Issue 3 and 4 are resolved against the Appellants. Dissolution of the OSSIEC and order directing the Appellants to vacate office raise a presumption that OSSIEC had prior been constituted and that the Appellants are or were occupying the offices sought to be vacated. As held above, it certainly cannot be the case that having been screened and sworn-in, adverse orders would be made against the Appellants without being heard.Assuming without conceding that the appointment and/or confirmation of the Appellants is voidable, it remains valid until otherwise set aside by the Osun State House of Assembly or a Court of law. This is particularly so as there is a legal presumption of regularity in favour of the Appellants pursuant to Section 168 of the Evidence Act. It states:-
“168. Presumptions of regularity and of deeds to complete title.
(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for the validity were complied with.
(2) When it is shown that any person acted in a public capacity, it is presumed

that he had been duly appointed and were entitled so to act.
(3) xxxxxxxxxx
(4) xxxxxxxxxxxxxx.”

It is also painfully discovered that the Claimant/Respondent did not specifically ask for an order dissolving OSSIEC or for the Appellants to vacate offices in OSSIEC. The request was made in the final address by way of reply on points of law on page 29 of the record as follows:
“We submit with respect that the mere filing of notice of appeal cannot be used to terminate this appeal. Consequently, we hereby apply for the consequential order nullifying the appointment of the Chairman and members of OSSIEC and thereby dissolving OSSIEC as presently constituted. Being null and void.”

This far reaching relief, in our opinion was wrongly granted by the trial Court and improperly upheld by the Court of Appeal as it did at pages 359-360 of the record, to the effect that:-
“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 the immediately preceding issues, the order, now being complained against, was consequential or incidental to the

declaration of the validity 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 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.”

The law is settled that, no matter the length and logic, submissions of Counsel cannot substitute for pleadings or hard evidence. On this position, we refer to the case of CALABAR CENTRAL CO-OPERATIVE THRIFT AND CREDIT SOCIETY LIMITED & 2 ORS VS BASSEY EKPONG EKPO (2008) 25 WRN 1; (2008) 1-2 SC. 229; (2008) 6 NWLR (Pt.1083) 362. According to Ogundare, JSC:
“Arguments of counsel, however brilliant is no substitute for the pleading and evidence in proof of same and therefore ground to no issue.”

The issue of validity or otherwise of Notice of Withdrawal of the appeal in HOS/M.41/2009 on March 29, 2010 and the effect of fresh screening and swearing-in resonate at every stage and level of this appeal. We have dealt with

the arguments on issues 3 and 4 as canvassed in the briefs of parties without agreeing with them on the need to formulate more than two issues in this appeal (that is issue 1 and 2 only).

In consequence, therefore, (and without making unsolicited consequential orders), the effect of the order of dissolution and vacation of office is far reaching, and, in our considered view, should have been specifically pleaded. Not doing so means: (1) order dissolving OSSIEC and (2) order directing the Appellants to vacate their offices, are both not appurtenant to the main order. Both are hereby nullified not having been specifically sought by the claimant/respondent.

In the final analysis, we paused to anticipate what in essence, will be or is the real (sweet) fruit of the labour of the Appellants in travelling the long, tortuous and expensive journeys of pursuing judicial remedies from trial Court to the Supreme Court. Assuming the Appellants had remained in office, their tenure could have ended by now, regrettably. However, as a Court of law, justice and policy, it is our considered view that the Appellants would appear to have lost most despite gaining all

in judicial victory. The Justice of this appeal would, in our thinking, be better served by treating the Appellants as retiring appointees for the purpose of enabling them to be paid their salaries and severance package(s) applicable to the current occupants of those offices as at the date of this judgment.

Having resolved all the issues in favour of the Appellants, this appeal succeeds in whole. The judgment of the trial Court and Court of Appeal are hereby set aside. No order is made as to cost. No order is made reinstating Appellants to their offices either as Chairman, Secretary and Members of the Osun State Independent Electoral Commission (OSSIEC). As stated immediately above, the justice of this appeal demands that Appellants be, and are hereby treated as retiring appointees for the benefit of payment of the full Salaries and allowances up to the time they would have left their offices by expiration of their tenure, and severance packages as provided by law, applicable to the current occupants of those offices as at the date this Judgment.
We so order.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in

draft the lead judgment of my learned brother BAGE, JSC just delivered. I agree with this reasoning and conclusion that the appeal has merit and should be allowed.

The facts relevant for the determination of the issues in contention have been stated in the lead judgment of my learned brother and I consequently do not intend to repeat them herein except as may be needed for the point(s) being made.

It is not in dispute that appellants were not made parties to either the earlier suit No. HOS/M.41/2009 nor the later suit No HOS/M.70/2010 the decision on which resulted in the instant further appeal. Appellants became aware of the suits after judgments had been delivered. They consequently applied and were granted leave to appeal as Interested parties against the decision on suit No HOS/M.70/2010 which appeal was dismissed by the lower Court.

Also not in dispute is the fact that suit No. HOS/M.70/2010 is not an appeal against the decision in suit No. HOS/M.41/2009 though its complaints are essentially against the proceedings in the said suit No HOS/M.41/2009.

The above notwithstanding, the trial Judge held at pages 165 166 of the record as

follows:-
1. The screening of the Chairman and Member of OSSIEC during the pendency of suit NHOS/M4/2010 is improper incompetent null void and of no effect.
2. The screening of the Chairman and Members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is an abuse of Court process.
3. Taking into consideration the combine effect of Order 11 Rule 1, 2, 4 and 5 of the Court of Appeal Rules 2007 the Notice of Withdrawal dated and filed 27 March 2010 cannot authentically terminate the appeal filed by the Appellant.
4. The filing of the Motion for Stay of Execution of the Judgment delivered 25/2/2010 by the defendant has put the judgment into abeyance.
5. An appeal properly filed at High Court Registry is for onward transmission to the Court of Appeal cannot be terminated before the same High Court by mere filing a Notice of Withdrawal of Appeal.
In effect, the Osun State Independent Electoral Commission is hereby dissolved having been constituted illegally. The Chairman, Members and Secretary of the Commission shall vacate office forthwith.”

From the reliefs granted, the respondents supra, It is very clear

that the interests of the appellants were directly affected by that judgment though they were not made parties in the action. The judgment therefore clearly infringed their right of fair hearing constitutionally guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 as amended.
(hereinafter referred to as the 1999 Constitution as amended) See Section 36(1) etc thereof. The lower Court was therefore in error in holding that appellants were not necessary parties even when the trial Court held thus:
“In effect, the Osun State Independent Electoral Commission is hereby dissolved, having been constituted illegally! The Chairman, Members and Secretary of the Commission shall vacate office forthwith.”

Funny enough, appellants are the people the trial Courts above order is directed at in absential. Is it not good common sense that you cannot cut a mans hair in his absence In the circumstance, it is clear that the above decision, in so far as it affected, adversely, the right of appellant’s without being heard is a nullity and that the lower Court was in grave error when I affirmed same.

Secondly there is the issue of

abuse of process following the institution of suit No. HOS/M.70/2010, the reliefs of which questioned the proceedings in suit No. HOS/M.41/2009 when it was not by way of an appeal. It is settled law that abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. It is therefore very clear that for the respondents to institute suit No. HOS/M.70/2010 during the pendency of an alleged unwithdrawn appeal in the suit No. HOS/M.41/2009 claiming the same reliefs is an abuse of Court process which is never encouraged by the Courts.

It is for the above reasons and the more detailed reasons assigned in the lead judgment of my learned brother, BAGE, JSC that I too find merit in the appeal and consequently allow same. I abide by the consequential orders made in the said lead judgment including the order as to costs.

Appeal allowed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in complete agreement with the judgment and reasonings just delivered by my learned brother, Sidi Dauda Bage JSC and to place on record that support, I shall make some remarks.

This is an appeal

against the judgment of the Court of Appeal, Akure Division sitting in Akure on the 29th November, 2012 in which the judgment of Osun State High Court, Oshogbo per S. O. Folala J. on 3rd December, 2010 was upheld which all the declaratory reliefs sought by the Claimant/1st respondent were granted.

The appellants further aggrieved have come before the Supreme Court upon four grounds of appeal.

On the 24th March, 2009, the appellants failed to bring their credentials and the defendant/respondent confirmed the appointment of the appellants.

The appellants were sworn into office by the Governor of Osun State on 3rd April, 2009.

Dissatisfied with the procedure employed by the defendant/respondent in confirming the appointment of the appellants, the Claimant/respondent approached the Court by way of originating summons in Suit No. HOS/M.41/2009 HON. TIMOTHY OWOEYE v. OSUN STATE HOUSE OF ASSEMBLY.

The Claimant/respondent in the said suit claimed three reliefs, which reliefs were granted altogether in the judgment delivered on the 25th February, 2010. The Court declared the confirmation of the appellant null, void and of no effect and as

such dissolved the appellants.

The defendant/respondent promptly appealed against the judgment in HOS/M.41/2009 delivered on the 25th February, 2010 and applied for a stay of execution.

The application for stay of execution of the judgment in HOS/M.41/2009 was pending before the Court when the defendant/respondent to show intention to withdraw the appeal merely filed a notice of withdrawal dated 29th March, 2010. The notice of withdrawal filed at the registry of the lower Court disclosed no address for service and indeed was never served on the Claimant/responded in violation of Order 11 Rule 1 of Court of Appeal Rules, 2007.

The pendency of the application for stay of execution of the judgment in HOS/M.41/2009 and non Service of the notice of withdrawal of appeal was deposed to in the claimant/respondent’s affidavit in support and reply to counter-affidavit. The deposition was never rebutted.

Fresh invitation was made by the to defendant/respondent to the appellants and on the 30th March, 2010, the appointment of the appellants was reconfirmed and the appellants were re-sworn on the 1st April, 2010 into office by the then Governor

of Osun State.

Consequently, the claimant/respondent, in Suit No. HOS/M.70/2010 – TIMOTHY OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY approached the Court to challenge the Notice of withdrawal of Appeal which was not served on the claimant/respondent purporting to terminate the appeal in HOS/M.41/2009; the effect of Order 11 Rules 1, 2, 4 and 5 of the Court of Appeal Rules 2007.

The claimant/respondent contended in suit No. HOS/M.70/2010 that the notice of withdrawal of appeal filed by the defendant/respondent withdrawing the Appeal filed against the judgment in HOS/M.41/2009 could not terminate the appeal for being Incompetent due to lack of service; and that application for stay of judgment delivered in Suit No. HOS/M.41/2009 was still pending before the Court. The claimant/respondent contended further that since the appeal was still pending, the re-screening exercise conducted for the appellants by the defendant/respondent on the 30th March, 2010 was irregular and an abuse of Court process. We refer to the Paragraphs 1-15 of the affidavit in support of originating summons at pages 4-9 of the records and the reply to counter affidavit of the

claimant/respondent at pages 26-27 together with the counsel’s address and the attached exhibits.

The defendant/respondent however contended that the notice of withdrawal of appeal in Suit No. HOS/M.41/2009 at the registry of the lower Court has effectively terminated the said appeal. This position is contained in the counter affidavit Paragraphs 6-12 filed by the defendant/respondent at page 10-11 and the argument pressed by counsel in the written address on behalf of the defendant/respondent at page 17-25 of the records.

The learned trial Judge granted all the reliefs sought by the claimant/respondent and further granted a consequential relief by ordering the dissolution of the OSSIEC and that the appellants should vacate office forthwith.

Hence the appeal by the appellants to the Court of Appeal or Lower Court on six grounds of appeal. The appeal was dismissed hence the recourse of this Court.

On the 7th day of December, 2016 date of hearing, learned counsel for the appellants, S. K. Olowolagba Esq. adopted the brief of the appellants settled by M. O. Okediya Esq. and filed on 6/5/15 in which were distilled four issues for determination

of the appeal, viz:-
1) Whether the learned justices of the Court of Appeal were right in upholding the decision of the learned trial judge on the ground that the notice of withdrawal of appeal filed by the defendant/respondent against the judgment of the High Court in Suit HOS/M.41/2009 – HON. TIMOTHY OWOEYE OSUN STATE HOUSE OF ASSEMBLY was not served on the Claimant/respondent. (Relate to Ground 1 of the Grounds of Appeal).
2) Whether the learned justices of the Court of Appeal were right in their decision that the appellants have no interest in the matter of the suit before the trial Court and that the proceedings is not a breach of the appellants’ right to fair hearing. (Relate to Ground 2 of the Grounds of Appeal).
3) Whether the learned justices of the Court of Appeal were right in upholding the decision of the trial Court dissolving OSSIEC on the basis that the screening and confirmation exercise cannot be done when the defendant/respondent’s appeal against the judgment in suit HOS/M.41/2009 is still pending. (Relate to Ground 3 of the Grounds of Appeal).
4) Whether the order dissolving OSSIEC and ordering the Appellants to vacate

office made by the learned trial judge and upheld by the Court of Appeal can appropriately be qualified as a consequential order in view of the circumstances of this case.
(Relate to Ground 4 of the Grounds of Appeal).

Adewale Afolabi Esq. of counsel for the respondents adopted the separately settled and filed briefs, one by T. S. Adegboyega for the 1st respondent filed on 24/6/2013 and that for the 2nd respondent filed on 15/5/2014 and deemed filed on the 14/11/16. Learned counsel for the respondents adopted the issues as formulated by the appellants.

ISSUE ONE:
Whether the learned justices of the Court of Appeal were right in upholding the decision of the learned trial judge on the ground that the notice of withdrawal of appeal filed by the defendant/respondent against the judgment of the High Court in suit HOS/M.41/2009 – HON. TIMOTHY OWOEYE v. OSUN STATE HOUSE OF ASSEMBLY was not served on the Claimant/Respondent, (Ground 1).

Learned counsel for the appellant contended that the basis of the respondent’s case before the trial Court and the reliefs sought therein were simply that the notice of withdrawal of appeal is for

transmission to the Court of Appeal and it would not terminate the appeal at the trial high court and that the notice of withdrawal having not been transmitted to the Court of Appeal, the appeal was therefore still pending. That the service or non-service of the notice of withdrawal of appeal filed in suit HOS/14.41/2009 was not made an issue in any of the grounds of appeal and issues formulated for determination in the appeal before the Court of Appeal. That the decision of the Court of Appeal on that ground was clearly in error being outside the case before them, nor arose at the Court of trial. He cited Momoh v. Umoru (2011) 6 SCM 99 at 126; Ayanwale v. Odusami (2011) 11 – 12 (Pt. 1) SCM 39 at 48 and 52 etc.

Responding, learned counsel for the respondents submitted that contrary to the position of the appellants, that the matter of whether the notice of withdrawal dated 27th March, 2010 is competent to automatically terminate the appeal was an issue raised, argued and settled by the trial court and affirmed by the Court of Appeal. That the supporting affidavit to the questions raised and the counter affidavit were borne out of the record. He cited page

162 of the record and the case of Onyejekwe v. Enweonwu (2010) 4 NWLR (Pt. 1185) 447 at 486 etc.

That the issue was properly considered by the Court of Appeal which court ruled against the appellants on it.

The stance of the appellants on this Issue One is that the matter of the non-service of the notice of withdrawal of the appeal in suit HOS/M.41/2009 was not determined or raised in the trial High Court. This the respondents dispute referring to the Certified True Copy of the Notice of Withdrawal of appeal attached as Exhibit “AA” and the appellants’ brief which the issue was raised, argued and the trial Court made a determination thereof. That the issue had been raised thus:-
“Whether taking into consideration the combined effects of Order 11 Rules, 1, 2, 4 and 5 of the Court of Appeal Rules 2007, the notice of withdrawal dated the 27th day of March, 2010 automatically terminated the appeal filed by the appellant in this case.”

That the affidavit evidence showed that the issue having been raised and admitted thereby giving room for its due consideration by the trial Court which ruled thus:-
“I have checked the original copy in the

case file and discovered that not only was there no address of service on the defendant (sic), there is no proof of service on him. By implication, there is no consensus to withdraw the appeal. The conduct of the defendant is obviously in confrontation with Order 11 Rules 1, 2, and 4 Court of Appeal Rules”.

The Court of Appeal on its part per Nweze JCA (as he then was) held:-
“… 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.”

It falls to reason therefore that the matter of whether or not the notice of withdrawal was considered does not arise as the records bear that out clearly. The result is that a valid subsisting decision of the trial Court, affirmed by the Court below that there was no service of the notice of withdrawal of the appeal and so in effect stamped the fact of the appeal being alive and well, it should have been raised in the earlier suit by way of an appeal.

ISSUE NO.2:
Whether the learned justices of the Court of Appeal were right in their decision that the appellants have no interest in the matter of the suit

before the trial Court and that the proceeding is not a breach of the appellants’ right to fair hearing.

For the appellants, learned counsel submitted that contrary to the decision of the Court of Appeal, the appointment of the appellants as at the time the respondent as claimant filed this suit to challenge the screening exercise conducted by the 2nd respondent on the 30th March, 2010 was no longer inchoate as it had become substantive and so the interest of the appellants had accrued. Therefore shutting them out of the suit breached their right to fail hearing. He cited Green v. Green (1987) NSCC 115: Section 36 (1) of the 1999 Constitution (as amended); Ovunwo & Anor v. Woko & Ors (2011) 7 SCM 207 at 231 – 232 etc.

Countering the stance of the appellants, learned counsel for the respondents stated that is only when Section 198 of the Constitution of the Federation is duly complied with by the 2nd respondent that any right to the appellants under Section 199 of the Constitution would become established right of the appellants as claimant and members of the Osun State Independent Electoral Commission. He referred to Togun v. Oputa (2001) 16

NWLR (Pt. 940) 585; Olufeaoba v. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384 at 646 etc.

The Court below was of the mind that the appellants’ right to be joined had not crystallised and so their right to fair haring had not accrued since what was at stake whether or not the House of Assembly had complied with Section 198 of the Constitution in carrying out its processes which would later lead to the appellants becoming Chairman and members of the OSSIEC.

That position put across by the respondents and accepted by the Court below is not to be taken so simply. This is because from the facts available at the inception of the suit the right of the appellants as Chairman, members and Secretary of OSSIEC had already accrued as the process of their appointment and confirmation under Section 198 and 199 of the Constitution had been complied with. Therefore, as at the time the respondents as claimants had initiated their suit on 30th March, 3010 the processes were no longer inchoate but complete and substantive. That brought their interest to the fore and so could not have the matters relating thereto adjudicatorily discussed in their absence without being

made parties. For a fact the suit was not just to challenge the internal proceedings of the respondent House of Assembly but the connecting interests of the now appellants and so the appellants had to be heard on it. See Green v. Green (1987) NSCC 115; Section 36 (1) of the 1999 Constitution (as amended).
The resultant effect is that the appellants being necessary interested parties who ought to be heard and were not joined in suit, the orders made against them by the trial judge and the entirety of the proceedings, thereby would come to naught as they had been denied of their right to fair hearing. The situation makes the stance of the Court of Appeal not to be agreed upon at this level. See Ovunwo & Anor v. Woko & Ors (2011) 7 SCM 207 at 231-232; NURTW & Anor v. RTEAN & Ors (2012) 3 SCM 171 at 178-179; Tanko v. UBA (2010) 11 SCM 199 at 212.
In fact this matter of the breach, is fundamental as it shows the unassailable reason for which the decision of the Court of Appeal alongside the trial judge’s cannot be sustained as a clear miscarriage of justice has occurred. The necessary party being absent before Court and its hearing and

determination, the proceedings done are evidently in breach of the appellants right to fair hearing and therefore a nullity. See Anyanwoko v. Okoye & Ors (2010) 1 SCM 21 at 38; Victino Fixed Odds Ltd v. Ojo & Ors (2010) 4 SCM 122 at 135.

From the foregoing and the fuller reasoning in the lead judgment, there is no point in my humble view in getting into the other issues raised as I have no difficulty in finding for the appellants whose appeal is meritorious. I also allow the appeal as I set aside the decision of the Court below in its affirmation of the judgment and orders of the trial High Court.

I abide by the consequential orders made.

KUMAI BAYANG AKA’AHS, J.S.C.: I read before now the judgment just delivered by my learned brother, Bage JSC. I am in complete agreement with him that the appeal has merit and should be allowed.

The Claimant/Respondent in this appeal and some members of the Action Congress (AC) in the Osun State House of Assembly were dissatisfied with the procedure followed by the House of Assembly in the screening and appointment of the Chairman and member of the Osun Sate Independent Electoral Commission

(OSSIEC) and took out an Originating Summons before the Osun State High Court Oshogbo in suit No. HOS/M.41/2009. Judgment was delivered against the Osun State House of Assembly. Aggrieved by the decision, the said House of Assembly filed their notice of appeal and followed it up with a motion for stay of execution of the judgment. The House had a change of mind and filed notice to withdraw the appeal. The said Notice was filed in the registry of the High Court. Thereafter they commenced another screening exercise which culminated in the resolution of the House on 30th March, 2010 confirming or approving the appointment of the appellants as Chairman and Members of OSSIEC and they were sworn in on 1/4/2010 by the Governor of Osun State. The 1st respondent was not satisfied with the screening and resolution confirming the appointments and commenced another action by Originating summons in Suit No. HOS/M.70/2010 on 29/6/2010 which was about 3 months after the appellants had assumed duty. In the said suit No. HOS/M.70/2010 in which the appellants were not joined, the 1st respondent sought the following declaratory reliefs:-
“1. A declaration that the screening of

the Chairman and Members of OSSIEC during the pendency of appeal in Suit No. HOS/M.41/2009 is improper, incomplete, null and void and of no effect.
2. A declaration that the screening of the Chairman of OSSIEC during the pendency of appeal in Suit No. HOS/M.41/2009 is an abuse of Court process.
3. A declaration that, taking into consideration the combined effects of Order 11 Rules 1, 2, 4 and 5 of the Court of Appeal Rules, 2007, the notice of withdrawal of appeal dated the 27th day of March, 2010 cannot automatically terminate the appeal filed by the appellant in this appeal.
4. A declaration that the filing of an application for stay of execution of judgment delivered on 25th day of February, 2010 by the defendant against whom the judgment is given has put the judgment in abeyance until the ruling on the application for stay of execution is delivered.
5. A declaration that an appeal properly filed at the High Court Registry is for onward transmission to the Court of Appeal and cannot be terminated before the same High Court by merely filing a notice of withdrawal of appeal.

Judgment in the suit was delivered on 3rd December,

2010 and the Osun State House of Assembly appealed and on 29th November, 2012 the Court of Appeal sitting in Akure affirmed the decision appeal No. CA/AK/31M/2011.

The Court below per Nweze JCA (as he then was) in affirming the Judgment of the learned trial Judge held that 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 while Kekere-Ekun JCA (as she then was) who presided over the appeal held that 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 its decision and since the procedure adopted by the State House of Assembly was declared illegal, null and void, the Court rightly granted the consequential order to give effect to its judgment.

In Suit No. HOS/M.41/2009, the learned trial Judge in resolving the issues raised in the Originating Summons declared as follows:-
”1. That the purposed confirmation of the appointment of the Chairman and Members of the Osun State Independent Electoral

Commission by Osun State House of Assembly is null, void and of no effect. It is therefore set aside.
2. That the procedure adopted by the Osun State House of Assembly in the confirmation of the appointment of Chairman and Members of the Osun State Independent Electoral Commission without the photostat copies of the credentials of five out of the seven and indeed without the original credential (sic) of any of the nominees placed before the House is irregular, unconstitutional null and void, and of no effect.
3. It is hereby ordered that the Osun State Electoral Commission as presently constituted be dissolved in that the Defendant (House of Assembly) did not follow the provision of the 1999 Constitution and normal procedure required for the confirmation of the appointment of Chairman and Members of the Osun State Independent Electoral Commission.

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 undertaken by the house of the Assembly

is set aside.”

The learned trial Judge’s clarification was that it was the screening and confirmation of the appellants that he set aside and not their appointment. The clarification was therefore not obiter. I therefore do not agree that the order made dissolving OSSIEC was a consequential relief which was meant to give effect to the declarations made on the screening of the Chairman and Members of the Osun State Independent Electoral Commission.

At the time, Suit No. HOS/M.41/2009 was instituted, the Governor of Osun State had already sworn-in the appellants as Chairman and Members of OSSIEC after their appointment was confirmed by the Osun State House of Assembly. Again, when Suit HOS/M.70/2010 was instituted, the appellants had been re-sworn as Chairman and Members of OSSIEC. They were necessary parties in the two suites who ought to be joined before any order affecting their interest could be made. See: Green v. Green {1987} 3 NWLR (Pt. 61) 480; O. K. Contact Point v. Progress Bank (1999) 5 NWLR) (Pt. 604) 631. When proper parties are not before the Court, such that those who may be affected by the orders of the Court are not before it, the proper

course a Court must follow is to direct that all persons interested or likely to be affected by the results are brought before it See: Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466. The suit of the Claimant/Respondent was not just to challenge the internal proceedings of the Defendant/Respondent but the effect of it (as it ultimately turned out) was to deprive the appellants of their established rights as members of OSSIEC. Section 36(1) of the 1999 Constitution (as amended) stipulates that where the right or obligation of a person is in question and is to be determined by a Court or Tribunal he is entitled to be heard for it is an immutable principle of natural justice that no one to be condemned unheard.

A Court is duty-bound to adjudicate between the parties on the basis of the claim formulated by them. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial Court. The Court must hear the views of the parties before making an order different from the one claimed See: Ekpenyong v. Nyong (1975) 2 SC 71; Ajay v. Texaco Nig. Ltd (1978) 9-10 SC 1; A-G Anambra State v. Okafor {1992} 2 NWLR

(Pt. 224) 396; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257; Abbas v. Solomon (2001) 15 NWLR (Pt. 735) 144. Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483; Akinterinwa v. Oladunjoye (2000) 6 NWLR (659) 92; Osuji v. Ekeocha (2009) 16 NWLR (pt. 1166) 81.

It was held in Kotoye v. CBN (1989 1 NWLR (Pt. 98) 419 that the rule of fair hearing is not a technical doctrine but a rule of substance and the question is not whether injustice has been done because of lack of hearing but whether a party entitled to be heard before a decision had in fact been given an opportunity of hearing. Thus once an appellate Court comes to a conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the decision is liable to be set aside.

The right vested in the appellants cannot be taken away or determined in the suits filed by the Claimant/Respondent against the defendant/Respondent after it became vested on the appellants. They must be made parties to the suit or be given opportunity to be heard. The orders made by the learned trial judge and held by the

Justices of the Court of Appeal were specific reliefs and they encompassed more issues than the matter of procedure of conducting screening. As such they ought to have been specifically claimed with the proper and necessary parties joined in the action before they could be granted. The only reason which could make a person a party to an action is that he should be bound by the result of the action.
See: Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546

The learned trial judge played father Christmas in ordering the dissolution of OSSIEC and making the appellants to vacate their offices as Chairman and Members of OSSIEC without the Claimant/Respondent asking for that specific relief. The decision of the Court of Appeal which affirmed the dissolution of OSSIEC and asking the Chairman and Members to vacate their offices without affording them any hearing is perverse and must be set aside.

It is for this reason and the more detailed reasons contained in the judgment of my learned brother, Bage JSC that I too allowed the appeal.

The appointment of the appellants as Chairman and Members of OSSIEC was a tenure appointment lasting five years and

they were entitled to their salaries and allowances as stipulated by law. Since their tenure was truncated by the trial Court in 2010 and the tenure has lapsed, they are entitled to be paid their salaries and allowances for the unexpired period of the tenure as well as enjoy any severance benefits. In the result, I allow the appeal and endorse the order made in the lead judgment regarding the payment of salaries and allowances for the unexpired term of their tenure and the payment of severance allowance as stipulated by law.

EJEMBI EKO, J.S.C.: On 29th November, 2012 the Court of Appeal, sitting at Akure (hereinafter referred to as “the lower Court”) in the appeal No. CA/AK/31M/2011 affirmed the decision of Osun State High Court, Oshogbo delivered on 3rd December, 2010 in the suit No. HOS/M.70/2010. The parties in the suit No. HOS/M.70/2010 were the 1st Respondent herein, as the claimant (suing for and on behalf of other members of the Action Congress in the Osun State House of Assembly), and the Osun State House of Assembly, the 2nd Respondent herein, as the sole defendant.

The suit was on the originating summons. The 1st Respondent, as the

claimant, had sought the following reliefs –
“1. A declaration that the screening of the Chairman and Members of OSSIEC during the pendency of appeal in the suit No. HOS/M.41/2009 is improper, incompetent, null and void and of no effect.
2. A declaration that the screening of the Chairman of OSSIEC during the pendency of appeal in suit No. HOS/M47/2009 is an abuse of Court process.
3. A declaration that, the taking into consideration the combined effects of Order 11 Rules 1, 2, 4 and 5 of the Court of Appeal Rules, 2007, the notice of withdrawal of appeal dated the 27th day of March, 2010 cannot automatically terminate the appeal filed by the Appellant in this appeal (sic).
4. A declaration that the filing of an application for stay of execution of judgment delivered on 25th day of February, 2010 by the defendant against whom the judgment is given has put the judgment in abeyance until the ruling on the application for stay of execution is delivered.
5. A declaration that an appeal properly filed at the High Court Registry is for onward transmission to the Court of Appeal and cannot be terminated before the same High Court by merely

filing a notice of withdrawal of appeal.”

The persons referred to as the Chairman and Members of OSSIEC, in the reliefs 1 and 2 above reproduced, are the appellants herein. They were not made parties in the suit No. HOS/M.70/2010 and judgment in the suit was delivered without them, even though they were the targets of the declaratory reliefs 1 and 2 in the said suit. OSSIEC is the acronym for Osun State Independent Electoral Commission, established pursuant to Section 197 of, and Paragraph 3, Part 2 of the Third Schedule to the, 1999 Constitution. The appointments of the Chairman and Members by the Governor of the State are subject to the screening and approval or resolution of the State House of Assembly.

The Governor of Osun State had earlier made the appointments of the Chairman and Members of OSSIEC, and submitted their names to the Osun State House of Assembly for screening and approval. The House of Assembly did the screening and resolved to approve their appointments. The 1st Respondent herein was not satisfied with the manner the screening and resolution were done. He complained that the curricular vitae of all the nominees were not available

previously to the House of Assembly to enable it to do any proper screening. He took out the suit No. HOS/M.41/2009 against the Osun State House of Assembly. Judgment in the suit No. HOS/M.41/2009 was delivered against the Osun State House of Assembly (herein the 2nd Respondent). Aggrieved, the said House of Assembly filed their notice of appeal and followed it with a motion for stay of execution of the said judgment. It later had a re-think, and decided to submit to the judgment and then do the needful. Consequently, it filed a notice to withdraw the appeal. The notice of withdrawal of appeal was filed at the registry of the High Court. The notice had no address for service of the respondent in the appeal.

The Osun State House of Assembly (OSHA), believing that the notice of withdrawal of appeal was filed pursuant to Order 11 of the Court of Appeal Rules, 2007 and the appeal, in their thinking, duly terminated, proceeded to screen de novo the appellants herein. This screening culminated in the resolution of the OSHA on 30th March, 2010, confirming or approving the appointments of the Appellants, respectively, as Chairman and Members of OSSIEC. The Governor

of Osun State promptly on 1st April, 2010 swore the Appellants into their offices in OSSIEC to perform their functions. The 1st Respondent undaunted and not satisfied with these screening and resolution went back to the Osun State High Court and took out the present suit, No. HOS.M70/2010 on 29th June, 2010 – about 3 months after the Appellants had assumed duties and were discharging their functions. The Appellants, who were necessary parties, in view of Reliefs 1 and 2 (earlier reproduced) which adversely affected them, were not joined as parties to defend the suit.

The suit No. HOS/M.70/2010 was improperly constituted by reason of the non-joinder of necessary parties. The trial Court granted all the reliefs, including reliefs 1 and 2, sought. It proceeded gratuitously to make orders dissolving the OSSIEC and directing the Chairman, Members and Secretary of Commission to forthwith vacate their respective offices. These mandatory orders directed against the Appellants specifically were not sought by the 1st Respondent, as the claimant, at the trial Court. It was in consequence of this quixotic manner of adjudication that the Appellants sought leave to

appeal, and they were granted leave to appeal, as interested parties.

The contention that the failure to join the Appellants, in view of the declarations in Reliefs 1 and 2 together with the two mandatory orders reeled out against the Appellants in favour of the 1st Respondent in the manner of the benevolence of Santa Claus, was dismissed by the Court below as “thus not well taken”. The Court below, in my firm view was clearly in error here.

The granting of the two declarations in reliefs 1 and 2 and re-inforcing them with the orders ex qratia dissolving the OSSIEC and directing them to forthwith vacate their offices in OSSIEC clearly violated the right of the Appellants to fair hearing guaranteed by Section 36(1) of the 1999 Constitution, which directs the trial Court, in the determination of the Appellant’s civil rights and obligations, to give them fair hearing. A determination of the civil rights and obligations of parties in flagrant violation of their right to fair hearing is a major or serious infraction of their constitutional right by the trial Court that was established by law and constituted in such manner to secure its impartiality

to all parties before it. This serious infraction of the fundamental rights provisions of the Constitution, loud and noisome as it were, ought not to have been ratified or affirmed by the Court below.

It was argued by the Respondents that the orders dissolving the OSSIEC and directing the Appellants to forthwith vacate their offices in OSSIEC were consequential upon the trial Court granting the five declaratory reliefs. They could not have been. In the first place, the said orders [like the grant of Reliefs 1 and 2) were a nullity, having been made against the Appellants who were not given an opportunity to be heard on them, in violation of their right to fair hearing.

Secondly, those orders were fresh orders not contemplated by the 1st Respondent, as the claimant, when he formulated the reliefs he had sought from the trial Court. A consequential order is an appurtenant to the main or principal relief or order sought. In EAGLE SUPER PACK (NIG.) LTD. v. A.C.B. (2006) 19 NWLR (Pt. 1013) 20, it was held that where the claim was for refund in Naira currency, an order made for refund in U.S. Dollars could not be a consequential order.

At the risk of

repetition, the 1st Respondent did not, in the originating summons, seek any orders for dissolution of OSSIEC by and immediate vacation from their offices in the OSSIEC by the Appellants who were the incumbent Chairman, Members and Secretary of OSSIEC. The request for those orders, without the amendment of the originating summons, came in only at the stage of reply on points of law when the defence no longer had the right of reply. Reliefs are not sought in the counsel’s address or summation. They must be pleaded and served for the defence to respond to it. An address of courses is not, and cannot be substitute for pleading. See AYANWOLE v. ODUSAMI (2011) 11- 12 SCM (Pt. 2) 39; GMB v. DOSUNMU (2010) 6 SCM 88 at 103 – 104. In any case, it is only against the parties in the suit that such reliefs can be directed in the pleadings.

A consequential order is one made to give effect to the judgment which it follows. It does not come from the blues as the two made gratuitously, and capriciously too, by the trial Court. The incidence of consequential order is not an occasion or pre for the trial Court to enter into the arena to deliver punches on one of the

parties in the contest before it to the obvious disadvantage of the other. The drawing up of consequential order should not make the judge violate the injunction on him to remain independent and impartial in terms of Section 36(1) of the 1999 Constitution. Neither should he shred the plague before him reminding him that, in his business, the rule is nemo judex in causa suo.

In the instant matter, both pillars of fair hearing – audi alteram partem (give the other party an opportunity to be heard) and nemo judex in causa sua (judge should be impartial and not be a judge in his own cause) were all violated by the trial Court. The Court below, therefore, was wrong to have affirmed the judgment, as it did.

The 1st Respondent had submitted that, because the pending appeal against the decision in his earlier suit No. HOS/M.41/2009 was pending and the purported withdrawal of the appeal was ineffectual, the appellant should not have made “attempt to comply with the decision of the Court” he was appealing. The submission sounds preposterous. Nothing in law prohibits a judgment debtor from submitting to the judgment against him, which he is appealing against.<br< p=””

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In principle, I agree with the Court below, where in its judgment at page 345 of the Records, it stated that –
“It is reprehensible conduct for any party to – appeal, pending in Court, to attempt to take the law into his hands without any specific order of Court and to do any act which would pre-empt the result of the action.”

The peculiar facts of this case, however, do not justify the application of this sound rule of law and prudence. A party who submits to the judgment against him and has taken steps to comply with the judgment, which he had earlier filed notice of appeal against, is in my a view law abiding who should be encouraged and commended, rather than vilified.

Now, to the purported notice of withdrawal of the appeal against the decision in suit No. HOS/M.41/2009.

The first defect in the notice to withdraw is that there was no address on the said notice of the respondent in that appeal. This defect is fundamental.
Order 2 Rule 3 of the Court of Appeal Rules, 2007, provides, without ambiguity:-
“3. Where under these Rules, any notice or other process is required to have an address for service endorsed on it, it shall

not be deemed to have been properly filed unless such address has been endorsed on it.”

The instant notice of withdrawal of the subsisting appeal had no address endorsed on it for service on the respondent in the appeal. The notice is therefore incompetent, as submitted by the 1st Respondent.

Order 11 Rules 1, 2, 4 & 5 of the 2007 Rules of the Court of Appeal have the following active components/requirements necessary to effectuate a valid notice to withdraw appeal, viz-
“(1) The Notice must be filed before the appeal is called on for hearing. (Not relevant for this appeal).
(2) The Notice shall be filed with the Registrar of the Court of Appeal (“Registrar” defined by Order 11 Rule 5 is the Registrar of the Court of Appeal, and not the registrar of the High Court or the Court from where the appeal emanates.)
(3) The Notice shall/must be served on all parties, particularly the respondent in the appeal.”
The service of the Notice of withdrawal on the respondent in the appeal, being imperative, the address for service on the respondent of the notice of withdrawal of appeal shall/must be on the notice, failing which the notice of

withdrawal of appeal is incompetent and a non-starter by dint of Order 2 Rule 3 of the Court of Appeal Rules.

The Court below, on this issue of the Notice of withdrawal being incompetent was right in holding that-
”It is only where a notice of withdrawal has been filed and served on the Respondent that the appeal in question is deemed, automatically, dismissed.”
The Court below is quite right on this.

An appeal which has been withdrawn under Order 11 of the Court of Appeal Rules, 2007, whether with or without an order of the Court of Appeal, shall be deemed to have been dismissed. The only remedy available to the respondent complaining that the notice of withdrawal is ineffectual ordinarily should have been by a way of appeal. This is because a valid notice of withdrawal of appeal, filed in the Registry of the Court of Appeal, effectively puts an end to the appeal, and the appeal in law, is deemed to have been dismissed. In the instant appeal, the purported notice of withdrawal of the appeal which has no address for service on the respondent appeal, by virtue of Order 2 Rule 3 of the Court of Appeal Rules, 2007, is deemed not “have

been properly filed”. Therefore, in the eye of law it does not exist and cannot draw or attract to itself the consequential effect of the appeal statutorily deemed to have been dismissed as contained in Order 11 Rule 5.

In our jurisprudence, a party who is aware that an order is null or invalid should apply to have it set aside. See ROSSEK v. ACB (1993) 10 SCNJ 20 at 39 – 40. In the instant case, the only remedy open to the 1st Respondent was to apply, by way of an interlocutory application in the appeal, for an Order setting aside the purported notice of withdrawal. His resort to a fresh suit (No. HOS/M.70/2010) in the matter of the wrong procedure to terminate the appeal against the decision in the previous suit No. HOS/M.41/2009 is an abuse of Court’s process. Consequently, the subsequent suit No. HOS/M.70/2010 was an abuse of Court’s process. The suit ought to be and is hereby dismissed.

On the whole, I find substance in the appeal and it is allowed by me. I hereby adopt the judgment just delivered by my learned brother, SIDI DAUDA BAGE, JSC, including all the orders made therein.

Appearances

S.K. Olowolagba, Esq. For Appellant

AND

Adewale Afolabi, Esq. with him, T.S. Adegboyega, Esq. and Kolapo Alimi, Esq. For Respondent