CORAM
PARTIES
HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & ORS APPELLANTS
HON. TIMOTHY OWOEYE & ANOR RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
In the early part of March 2009, the Executive Governor of Osun State appointed the 1st to the 6th 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 hence; they 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 Assembly seeking five declaratory reliefs. The Defendant/Respondent filed a defence. The trial Court Osogbo State High Court passed its Judgment in favour of Claimant/Respondent. 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 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, 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 the 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 and dismissed their appeal. The Appellants were dissatisfied with the Court of Appeal’s decision and accordingly filed a Notice of Appeal before this Court.
HELD
Appeal Allowed
ISSUES
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. 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.
RATIONES DECIDENDI
SUBSTANTIAL JUSTICE – DUTY OF THE SUPREME COURT TO DO SUBSTANTIAL JUSTICE
“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.”
WITHDRAWAL OF AN APPEAL – MODE OF WITHDRAWAL OF AN APPEAL
“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.”
FILING AND SERVICE OF A PROCESS – LEGAL ESSENCE OF FILING AND SERVICE OF A 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.
ABUSE OF COURT PROCESS – MEANING OF 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.” 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.”
RIGHT TO FAIR HEARING – WHETHER ANY COURT IN ASSUMING JURISDICTION CAN IGNORE THE RIGHT TO FAIR HEARING
“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.”
APPELLANTS – WHO ARE APPELLANTS?
“Beyond civil, 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).”
SUBMISSIONS OF COUNSEL – WHETHER SUBMISSIONS OF COUNSEL CAN BE 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.”
RIGHT TO FAIR HEARING – EFFECT OF A DENIAL OF THE RIGHT TO FAIR HEARING OF A NECESSARY PARTY
“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.”
NECESSARY PARTY – EFFECT OF A NECESSARY PARTY’S ABSENCE IN COURT
“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.”
PROPER PARTIES -DUTY OF COURT WHERE PROPER PARTIES ARE NOT BEFORE IT
“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.”
RIGHT TO FAIR HEARING – THE RIGHT TO FAIR HEARING AS AN IMMUTABLE PRINCIPLE OF NATURAL JUSTICE
“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.
COURT – WHETHER THE GRANTING OF RELIEFS NOT SPECIFICALLY CLAIMED DEPENDS ON THE DISCRETIONARY POWERS OF A TRIAL COURT
“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.
RULE OF FAIR HEARING –WHETHER THE RULE OF FAIR HEARING IS A TECHNICAL DOCTRINE
“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.”
PARTY TO AN ACTION –BASIS FOR MAKING A PERSON A PARTY TO AN ACTION
“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.”
CONSEQUENTIAL ORDER – MEANING OF CONSEQUENTIAL ORDER
“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.”
RELIEFS – WHETHER RELIEFS CAN BE SOUGHT IN THE COUNSEL’S ADDRESS OR SUMMATION
“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”.
CONSEQUENTIAL ORDER – NATURE OF CONSEQUENTIAL ORDER
“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 pretext 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.”
ORDER OF COURT – DUTY OF PARTY WHO IS AWARE THAT AN ORDER IS NULL OR INVALID
“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.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 as amended|Court of Appeal Rules, 2007|