May 5, 2025
Legalpedia Citation: (2015) Legalpedia (CA) 23911 In the Court of Appeal Fri Feb 20, 2015 Suit Number: CA/A/1/2015 CORAM PARTIES MADUBUKO PETER ONWUZULIKE APPELLANTS 1 BARR. ERNEST ANICHEBE […]
CORAM
PARTIES
MADUBUKO PETER ONWUZULIKE APPELLANTS
1 BARR. ERNEST ANICHEBE NWOYE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff at the trial Court filed an Originating Summons and sought declaratory and injunctive reliefs amongst which are: a declaration that the Plaintiff is the nominated candidate of the Peoples Democratic Party for Anambra East/West Federal Constituency for the 2015 general election having scored the highest number of votes and declared the winner of the primary, an order compelling the 1st Defendant to submit the name of the Plaintiff as its candidate for Anambra East/west Federal Constitutency for 2015 general election.
On the day fixed for the hearing of the suit, one Smart Iheazor Esq. appeared before the trial Court, and announced his appearance for the party seeking to be joined. Consequently, the trial Court adjourned the matter to a later date for hearing of all applications and the substantive suit. Being dissatisfied with the position of the trial Court, the party seeking to be joined has appealed to this Court.
HELD
Appeal Dismissed
ISSUES
1.Whether the decision of the court in adjourning for all applications (including the Appellant’s Motion for joinder) to be taken together with the substantive suit is not erroneous and occasioned a miscarriage of justice.?
RATIONES DECIDENDI
INCOMPETENT APPEAL – AN APPEAL FOUNDED UPON AN INCOMPETENT PROCESS IS INCOMPETENT
“An appeal founded upon an incompetent process is also incompetent. See Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (part 1346) 1 and Nigerian Army Vs Samuel (2013 14 NWLR (part 1375) 466.” PER T.Y. HASSAN, J.C.A
APPEAL AS OF RIGHT- APPEAL IS AS OF RIGHT WHERE THE GROUND OF APPEAL INVOLVES QUESTION OF LAW ALONE
‘‘Section 241(1) of the 1999 Constitution referred to by the appellant, provides that an appeal shall lie from, the decision of the Federal High Court or the High Court, to the Court of Appeal as of right if (b) the ground of appeal involves question of law alone, in decision on civil or criminal proceedings. By the authority of Adetona Vs. Edet (Supra), this is so, even if the decision delivered, is interlocutory.’’ PER A. D.YAHAYA, J.C.A
PRACTICE OF THE COURT–THE COURT IS TO DISPOSE ALL APPLICATIONS BEFORE HEARING THE SUBSTANTIVE SUIT.
“The normal practice is for courts to dispose of, all applications, before hearing the substantive suit.”PER A. D.YAHAYA, J.C.A
RIGHT OF APPEAL – THE RIGHT OF APPEAL ARISES WHERE A PARTY IS ABLE TO ESTABLISH WHAT DECISION HAS BEEN REACHED AND WHAT INJUSTICE HE HAS SUFFERED
“To be able to appeal, a party is duty bound to show what decision has been reached and what injustice he has suffered, thereby”.PER A. D.YAHAYA, J.C.A
APPEAL – A PARTY TO A PROCEEDING CANNOT APPEAL AGAINST A DECISION WHICH DOES NOT WRONGLY DEPRIVE HIM OF AN ENTITLEMENT.
“An appeal is lodged against a grievance arising from a judgment or decision and
“A party to a proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic” – Mobil Nig. Vs. Monokpo (Supra) at 399 A-B.PER A. D.YAHAYA, J.C.A
GROUND OF APPEAL – A GROUND OF APPEAL THAT QUESTIONS THE EXERCISE OF DISCRETION BY A TRIAL COURT, IS A GROUND OF MIXED LAW AND FACT WHICH REQUIRES THE LEAVE OF COURT
“A ground of appeal that questions the exercise of discretion by a trial court, is a ground at best, of mixed law and fact, and not of law and so leave is required – FBN VS. Abraham (2008) 18 NWLR (Pt. 1118) 172”.PER A. D.YAHAYA, JCA
RIGHT OF APPEAL – FOR THE RIGHT OF APPEAL TO BE EXERCISED TO THE COURT OF APPEAL, THE APPELLANT MUST BE A PARTY TO THE PROCEEDINGS
“It is a condition precedent, that for the right of appeal to be exercised to the Court of Appeal, the appellant must be a party to the proceedings. If he is not a party to the proceedings, but he has interest in the matter, then he does not have a right of appeal, but he can appeal with leave of the High Court or the Court of Appeal. This position has been succinctly stated by the Supreme Court. It referred to the decision in Ademola Vs. Sodipo(1992) 7 NWLR (PL 253) 251”. PER A. D.YAHAYA, J.C.A
GROUND OF APPPEAL – A GROUND OF APPEAL MUST RELATE TO THE DECISION APPEALED AGAINST
“A ground of appeal must arise or relate to the decision appealed against, otherwise it is incompetent -International Offshore Const. Ltd. VS- S- I. N. LTD (2003) 16 NWLR (Pt. 845) 157; Dyeris Vs. Mobil Oil (NIG) PLC (2010) 1 NWLR (Pt 1175) 309 and Eresia-Eke Vs. Orikoha(2010) 8 NWLR (Pt. 1197) 421”.PER A. D.YAHAYA, J.C.A
CASES CITED
STATUTES REFERRED TO
1.Constitution of the Federal Republic of Nigeria, 1999 (as amended)