JOSEPH v. MAFINDI & ORS
(2022)LCN/16965CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, November 24, 2022
CA/YL/176/2022
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
PROFESSOR JOSEPH APPELANT(S)
And
1. DR. HLKIAH BUBAJODA MAFINDI 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. LT. COL. AGBU KEFAS(RTD) 4. INDEPENDENT NATIONL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE ROLE OF A RESPONDENT
It is settled law that the traditional role of a respondent is to defend the judgment on appeal. Where he does not agree with the judgment or part of it he has the option to file a cross-appeal and where he desires that the judgment be affirmed on grounds other than that on which the judgment was delivered, he files a respondent’s notice. See the cases of:
Obi V. INEC & Ors (2007) LPELR-24347 (SC) Pp. 110 Paras B-D, Kayili V. Yilbuk & Ors(2015) LPELR-24323 (SC) Pp. 82-83 Paras F-C, Comex Resources & I. Ltd V. Obue Foundation (Nig) Ltd & Ors (2018) LPELR-49953 (CA) Pp. 5 Paras C-E. PER ABUNDAGA, J.C.A.
WHETHER OR NOT AN APPELLANT CAN APPEAL WITHOUT THE LEAVE OF COURT
The point being made is that the law frowns, seriously at a party who jumps into an appeal, or commences an appeal as an interested party without the prior leave of the Court sought and obtained. The law frowns on the person who does that. In the case of Chief Chukwuma Odii Ifeanyi V. Sen. Joseph Obinna Ogba & Ors (2022) LPELR-58787 (SC) it was held:
“It is clear from the records that the 1st Respondent in this appeal was never listed as a party at the trial Court; he therefore came into the appeal as an interested party. By the provisions of Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) an interested party must seek for and obtain leave of Court to appeal. See: ABDUL V. CPC (2013) LPELR-20597 (SC) where this Court held that “Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter. See METAL CONSTRUCTION (WEST AFRICA) LTD. V. MIGLIORE (1990) 1 NWLR (Pt. 126) 299; OLUWOLE V, LSDC (1983) 5 SC 1; FALEYE V. OTAPO (1987) 4 NWLR (Pt 64) 186.” PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The Peoples Democratic Party (PDP) conducted its primary election for the nomination of gubernatorial candidate for the Governorship election for Taraba State for the 2023 General Elections on 25/5/2022.
The following as aspirants contested the primary election:
1. Prof. Jerome Nyame
2. Col. Agbu Dantata Kefas (Rtd) (3rd Respondent)
3. Dr. Hilkiah Bubajodda (1st Respondent)
4. Prof. Joseph Albasu (Appellant)
5. Sen. Danlami Joel Ikenya
6. Mr. Ayuba Aminu.
Col. Agbu Dantala Kefas (Rtd) emerged victorious with 443 votes. He was followed by Prof. Joseph Albasu who secured 31 votes. The 1st Respondent scored 6 votes. The 1st Respondent herein, on 6/6/2022 decided to approach the lower Court vide an originating summons to challenge the outcome of the primary Election. The Peoples Democratic (2nd Respondent), Lt Col Kefas (3rd Respondent) and Independent National Electoral Commission (4th Respondent) were 1st, 2nd and 3rd defendants respectively. Issues were joined between the plaintiffs and the defendants, and the matter went to trial.
In the judgment that followed the trial the plaintiff’s claims were dismissed.
The judgment was delivered on 19/6/2022 The appellant, who though participated in the primary election, was not a party in the suit decided to appeal the judgment as an interested party. He filed a notice of appeal on 29/9/2022. The notice of appeal has 25 grounds of appeal. The judgment is in pages 337-387 of the record, while the Notice and grounds of appeal are contained in pages 388-418 of the record of appeal. The record of appeal was transmitted on 7/10/2022.
The appellant’s brief of argument settled by Dr. R.O Alabo, SAN was filed on 13/10/2022.
The 1st respondent filed his brief of argument settled by his counsel D.P. Saredau, Esq on 21/10/2022. The appeal was fixed for hearing on 14/11/2022, at which hearing Dr. R.O Atabor, SAN, who led other counsel, U. Idachaba, I.D Haruna and I. A Simon adopted the appellants’ brief of argument, and urged the Court to allow the appeal. He informed the Court that he filed a list of authorities which he also adopted.
Mr. Saredau who led Walmak Gupor, CC. Ichelu and I.M Kajere adopted the 1st Respondent’s brief, and urged the Court to dismiss the appeal contrary to the contention in the 1st respondent’s brief that the trial Court erred in declining jurisdiction, and to allow the appeal in part, but to decline to declare the appellant as winner of the primary election.
Let me hasten to state right away that there is something not jurisprudentially right about the 1st respondent’s brief. Can a respondent who did not file a cross-appeal or a respondent’s notice attack the judgment on appeal? The 1st respondent did not file a cross-appeal and did not file a respondent’s notice either, and yet he states that the trial Judge was not right in declining jurisdiction, and that the appeal be allowed in part. Can he really do that?
It is settled law that the traditional role of a respondent is to defend the judgment on appeal. Where he does not agree with the judgment or part of it he has the option to file a cross-appeal and where he desires that the judgment be affirmed on grounds other than that on which the judgment was delivered, he files a respondent’s notice. See the cases of:
Obi V. INEC & Ors (2007) LPELR-24347 (SC) Pp. 110 Paras B-D, Kayili V. Yilbuk & Ors(2015) LPELR-24323 (SC) Pp. 82-83 Paras F-C, Comex Resources & I. Ltd V. Obue Foundation (Nig) Ltd & Ors (2018) LPELR-49953 (CA) Pp. 5 Paras C-E.
The law as espoused renders the 1st Respondent’s brief of no utilitarian value in this Court. It shall therefore be discountenanced.
There is yet another issue of grave concern. It is the issue of the competence of the appeal which by established legal principle I am entitled to raise and decide suo motu. The Appellant was not a party to the proceeding at the lower Court. He has appealed as an interested party. Can it be done just like that? What the appellant has done is akin to going straight into another person’s bedroom without knocking. Are you likely not to stir some serious disapproval from the owner of the house? The point being made is that the law frowns, seriously at a party who jumps into an appeal, or commences an appeal as an interested party without the prior leave of the Court sought and obtained. The law frowns on the person who does that. In the case of Chief Chukwuma Odii Ifeanyi V. Sen. Joseph Obinna Ogba & Ors (2022) LPELR-58787 (SC) it was held:
“It is clear from the records that the 1st Respondent in this appeal was never listed as a party at the trial Court; he therefore came into the appeal as an interested party. By the provisions of Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) an interested party must seek for and obtain leave of Court to appeal. See: ABDUL V. CPC (2013) LPELR-20597 (SC) where this Court held that “Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter. See METAL CONSTRUCTION (WEST AFRICA) LTD. V. MIGLIORE (1990) 1 NWLR (Pt. 126) 299; OLUWOLE V, LSDC (1983) 5 SC 1; FALEYE V. OTAPO (1987) 4 NWLR (Pt 64) 186.” It is plain from the clear provisions of Section 243(1)(a) that any right of appeal from the decision of the High Court to the Court of Appeal shall be exercised by a party listed in the suit, any other person having real or perceived interest in the action must seek for and obtain leave of Court. It is interesting to note the ingenious submissions of learned Counsel for the 1st Respondent that Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria (as amended) does not apply to matters relating to elections. Learned Senior Counsel insisted that election matters are distinguishable from ordinary civil matters to which Section 243(1)(a) applies. In ORUBU V. NEC (1988) 5 NWLR (Pt. 94) at 323 this Court held that “…as a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute”. I must say with all due respect that this statement of law does not take away pre or post-election matters outside the requirements of Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The distinction sought to be erected between election and other civil matters must not be misunderstood to mean granting immunity to election matters against compliance with the provisions of the Constitution. The purpose of such distinction is to accord priority to election matters so that they are not exposed to the vagaries of incessant adjournments mainly designed by Counsel or parties to achieve delay. The issue central to the determination of this appeal is whether the 1st Respondent as an interested party can exercise right of appeal in a preelection matter without applying for and obtaining leave of Court. Section 285 (11) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not, as rightly settled in the leading judgment, vest right of appeal in pre-election matters. The provisions of Section 285(11) become activated in pre-election matters where the right of appeal is exercisable by the party in litigation or an interested party, in other words, the right of appeal must exist. Where an interested party in a pre-election matter becomes desirous of lodging an appeal against any decision, the interested party must apply for and obtain leave of Court pursuant to the provisions of Section 243 (1) of the Constitution. No matter how aggrieved an interested party is in a pre-election matter, he must seek for leave of Court to appeal in spite of the provisions of Section 285 (11) of the Constitution. I must say in lucid terms that, the right of appeal in pre-election matters is not open and available to every “Jack, Tom, Dick and Harry”. The standard in Court business must be preserved, compliance with the requirements of the law is necessary by any interested party. Potential litigants must not misconceive access to Court as “anything goes, the doors of the Courthouse must not be flung open to faultfinders, grumblers and meddlesome interlopers like the 1st Respondent in the instant appeal. “Per ABUBAKAR, JSC (Pp. 96-99, paras. C-D).
Having not sought and obtained leave before filing this appeal, the life of the appeal must be cut short. A meddlesome interloper cannot be allowed to wander around. Therefore, the appeal is hereby terminated in limine. This leads me to hold that, there not being a notice of appeal properly called, the provision of Section 285(11) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has not been activated for this appeal to be considered. Accordingly, this appeal is hereby struck out for lack of jurisdiction.
However, in the unlikely event that I am wrong and in keeping faith with the admonition of the apex Court which I do not treat with levity, that an intermediate Court sustains an objection and holds that it has no jurisdiction must proceed to determine the merit of the appeal, I shall with respect to the merit of the appeal adopt my reasoning and conclusion in Appeal No: CA/YL/175/2022, a sister appeal to the instant appeal. The facts are the same in the sense that the plaintiff in Appeal No: CA/YL/175/2022 and in this appeal were among the contestants in the primary election whose outcome they were aggrieved with and decided to sue at the lower Court. Both judgments were delivered on the same date and by the same Judge, and on the same set of facts. Your Lordships Dr. R.O. Atabo SAN was counsel for the Appellants in all the appeals.
Consequently, this appeal is without merit and is hereby dismissed.
TANI YUSUF HASSAN, J.C.A.: I agree.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree
Appearances:
R.O. Atabo, SAN with him, U Idachaba, I.D Haruna, and LA. Simon For Appellant(s)
D.P. Saredau, with him, Walmak C.C. Ichelu, and I.N Kajere, for 1st Respondent
M.A Tende, with him, Emaka Okoro for 2nd and 3rd Respondents
S.D Toklen for 4th Respondent. For Respondent(s)