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ILAMI ARUGU & ORS
RIVERS STATE INDEPENDENT ELECTORAL COMMISSION & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 13TH DAY OF DECEMBER, 2010
BEFORE THEIR LORDSHIPS
ISTIFANUS THOMAS, JCA
EJEMBI EKO, JCA
TUNDE O. AWOTOYE, JCA
ILAMI ARUGU & 19 OTHERS (For themselves and Chairmanship/ Councillorship Candidates for the Rivers State Local Government Election) – Appellant(s)
HON. UDI ODUM & 21 OTHERS – Respondent(s)
O.T.K.D. Amachree with H. Ikonwa, K.D. Amachree Esq.
A.M. Wakama Esq. – For Appellant
M.S. Amadi Oparaeli Esg.
Rivers State: High Court (Diepiri. J- Presiding)
CONNECTED AREAS OF PRACTICE
PRACTICE AND PROCEDURE – APPEAL – effect of failure to obtain leave where required – on need for claimants to come with clean hands
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – whether a judge is bound by the judgment of another court of co-ordinate jurisdiction -effect of a judgment in rem – validity of an order of a court of competent jurisdiction
INTERPRETATION OF STATUTES – Sections 241 and 242 of the 1999 Constitution
WORDS AND PHRASES – appeal – judgment in rem
TUNDE O. AWOTOYE, J.C.A.: [DELIVERING THE LEAD JUDGMENT]
This is an appeal against the decision of Rivers State High Court Port Harcourt Division delivered on 23/9/2008.
The claimants’ claim before the trial court are as follows:-
“Claimants claim against the defendants jointly and severally as follows:
In its ruling the trial court held inter-alia that the claimants had “legal impediment or obstacle on their way” The court held further.
“But before they can do so, they must remove the legal impediment or obstacle on their way, by first obtaining leave of this court or the Court of Appeal, to go on appeal, against the judgments of this court earlier mentioned, which adversely affected the legal rights they now seem desirous of protecting. It is after that, that they can properly come before this court to seek justice. Claimants are seeking justice and equity. They must necessarily do so with clean hands. Claimants must first institute in the Court of Appeal, a legal challenge to the orders of this court made behind them in the cases now under reference before embarking on their quest for justice. That is the Law.
In the final analysis and for some of the reasons given above in issue 4 or for a combination of them, the applications filed respectively by Counsel for 1st, 2nd and 3rd Defendants hereinabove mentioned, on the competence of this Court to entertain this Suit, at this stage, succeed.
In consequence thereof, I hereby order that Suit NO. PHC/30/2008, Itami Arugu & 19 Others v. Rivers state Independent Electoral Commission & 3 others, be and it is hereby struck out.”
It is against this decision that the documents filed a Notice of Appeal containing 7 grounds of appeal. The Grounds of Appeal read thus:-
“GROUNDS OF APPEAL:
The trial court erred in law when it assumed jurisdiction to entertain the preliminary objections of the 1st, 2nd and 3rd defendants when these objection were originally filed against the previous statement of claim which was subsequently amended and replaced without a consequential re-filing of the objections on the same or different grounds.
The trial court erred in law by holding, that claimants were adversely affected by the decisions in Suit NO. PHC/1503/2007, PHC/1575/2007 and PHC/1383/2007 when they were not parties to the suits; the subject matters in those suits have no bearing with the present suit; and it was not established that they knew when those suits were pending but failed or neglected to participate in the trial at the material time.
“From this deposition under reference, in 5th Defendant’s (sic) counter affidavit, as well as claimants averments in their pleading, it is clear that the 1st defendant played the following roles, in the emergence of the claimants as Chairmanship/Councillorship candidates in the Local government Election now in issue.
(1) 1st defendant received the list forwarded to them by 3rd defendant, wherein claimants were listed as candidates.
(2) Claimants collected from 1st defendant forms for the election and completed same.
(3) Claimants paid to 3rd defendant statutory fees stipulated by statute, for participation in this election.
(4) Claimants’ names were verified by 1st defendant.
(5) Claimants were screened for this election by 1st defendant and or its officials.
(6) Claimants were cleared and found worthy to contest this election by 1st defendant.
(7) 1st Defendant published the names of claimant’s as candidates for this election.
(8) 1st Defendant fixed the date for this election which was to hold on 3rd November, 2007 (see para 5 also of Claimants’ Amended Statement of Claimant).
As can be deduced from these acts of the 1st Defendant, Claimants could never have been accepted, and or cleared to contest the Local Government Election of 31/11/2007 if 1st defendant had not carried out the hereinabove listed acts. It was these acts of the 1st Defendant that in law and in fact conferred on the claimants the status of being candidates, for this election.”
The trial court erred in law when it held thus:-
“In the final analysis and for some of the reasons given above in issue 4 or for a combination of them, the applications filed respectively by counsel for 1st, 2nd and 3rd defendants hereinabove mentioned, on the competence of this court to entertain this suit at this stage, to succeed.”
The trial court misdirected itself in raw when it:-
“… But before they can do so, they must remove the legal impediment or obstacle on their way, by first obtaining leave of this court or the court of Appeal, to go on appeal against the judgments of this court earlier mentioned, which adversely affected the legal rights they now seen desirous of protecting. It is after that, that they can properly come before this court to seek justice and equity.
They must necessarily do so with clean hands, claimants must first seek from the court of Appeal, a legal challenge to the order of this court made behind them in the cases now under reference before embarking .on their quest for justice. That is the law.”
And this had led to a miscarriage of justice.
The trial court erred in law when it took judicial notice of laws expressed in the defendants, statement of defence against the principle of law that the only processes to be considered at the stage and for the purposes the objections were taken, were the claimants writ of summons, and statement of claim.
Error in law
The trial court erred in law when it approbated and reprobated on the issue whether the claimants knew of the pendency of suit PHC/1503/2007, PHC/1575/2007 and PHC/1383/2007.
The judgment is against the weight of evidence.”
The appellant filed their brief of argument and formulated 3 issues for determination as follows:
“03.02(1) Whether the claimants in this case (the Appellants) are bound by the judgment of the High Court of Rivers State in Suit numbers; PHC/1503/2007, PHC/1575/2007 and PHC/1383/2007 in which they were not parties and of which they were not aware and of which the facts and subject matter were not the same?
03.03(2) Whether in the circumstances of this case, and upon a proper application of the doctrine of judicial precedent or any other principle of law, the trial court was bound to follow the decisions in suit numbers: PHC/1503/2007 PHC/1575/2007 and PHC/1383/2007?
03.04(3) Whether the trial judge was right in holding that suit numbers PHC/1503/2007, PHC/1575/2007 and PHC/1383/2007 constituted a legal impediment to the right of the claimants to be heard on the merit of their case.”
The 1st Respondent in its brief of argument formulated 3 issue for determination thus:
03.02(1) Whether the judgment in Suit Nos. FHC/1503/2007, PHC/1575/2007 and PHC/1383/2007 constituted legal impediment to the reliefs of the Claimant in Court below?
03.03(2) Whether from the judgments of Diepiri J in the aforesaid suits, which nullified the 1st Respondent’s composition and actions or steps it took towards the conduct of Local Government election of 3-11-07, the Appellant can validly lay claim to have vested rights in the said Local Government elections?
03.04(3) Whether it will not amount to the trial judge sitting on appeal over its judgment having taken judicial notice of the aforesaid judgments of Diepiri J. and then go ahead to make conflicting decisions thereafter.”
The 2nd Respondent also filed brief of argument where he formulated a lone issue for determination as follows:-
“Whether in ail the circumstances of this case the Learned Trial Judge was right to have declined jurisdiction to entertain Appellants, suit on the grounds that the court racked the competence to try same in view of the subsisting judgment of the same High court of Rivers State in suit number FHC/1503/2007, PHC/1575/2007 and PHC/1383/2007.”
The 3rd Respondent in his brief formulated one issue for determination thus:
“Whether the learned trial judge was right in holding that the judgments in suit numbers PHC/1383/2007, FHC/1503/2007 and PHC/1575/2007 was a bar to the Appellants action.” 4th Respondent filed his brief of argument and formulated one issue for determination to wit “Whether the learned trial judge was right when he held that the appellant (Claimants) are bound by the judgment of the High court of Rivers State in suit. Nos. PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 which constituted an impediment to their right to institute suit No. PHC/30/2008 without first successfully appealing and setting aside the three judgments aforesaid.”
The 5th-26th Respondents in their briefs formulated one issue for determination namely.
“whether the learned trial court was justified when it concluded that the decision of the high Court of Rivers State in Suit Nos. PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 adversely affected the interest of the Claimants/Appellants and constituted a regal impediment to their claims in the instant case.”
The appellants rater filed a Reply Brief and a preliminary objection to the brief of the 5th – 26th Respondents. The Appellants also filed Reply Brief to the other briefs.
The 5th – 26th Respondent filed a written address in opposition to the preliminary objection raised by the appellants against the brief of 5th – 26th Respondents.
The 2nd and 3rd Respondents also filed cross-appear formulated 3 issues for determination.
“03.01 1 Whether the trial judge was right in determining the applications for joinder and amendment filed by the Appellants without first hearing and determining the applications challenging the jurisdiction of the court below to entertain and determine this suit?
03.02 2 Whether in the face of the existing judgments of DIEPIRI J. in Suit Nos. PHC/1503/2007, PHC/1579/2007 and PHC/1583/2007 the trial court had the jurisdiction to entertain this suit?
03.03 3 Whether a mere filing of appeal against the aforesaid judgments of DIEPIRI J. simpliciter will restore the right of the Appellants?
In their notice of appeal they raised 6 grounds of appeal the grounds of the cross-appeal are:-
The learned trial judge erred in law by allowing the application for joinder dated and filed on 1st Defendant/Appellant by the claimant/cross-Respondents at a time when the applications challenging the jurisdiction of the lower court to entertain this suit were pending without first hearing and determining same.
Particulars of Error
The learned trial judge erred in law by granting the application for the amendment of the pleadings of the claimant/Respondents while the applications challenging the jurisdiction of the Honourable court filed by the Appellant and 21st Respondent where still pending.
PARTTCULARS OF ERROR.
The learned trial judge erred in law when it relied on the amended statement of claim of the Claimants/Respondents in holding that there was cause of action and that they have disclosed locus standi.
The learned trial judge erred in law when he held that the Claimants’ /Respondents, statement of claim disclosed course of Action and Locus standi but later held that Diepiri J. in suit Nos. PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 nullified every action taken by the Appellants pursuant to its power as Rivers State Independent Electoral Commission.
PARTICULARS OF ERROR
The learned trial Judge erred in law by holding that the Claimants/Respondents have shown that the matter had gone beyond intra party affairs as revealed in their amended statement of claim and as such have a vested interest.
PARTICULARS OF ERROR
The learned trial Judge erred in holding thus: claimants can validly institute this action in representative capacity just as they did. But before they can do so, they must remove the legal impediment or obstacle on their way, by first obtaining leave of this court or the court of Appeal, against the judgment of this Court earlier mentioned, which adversely affected the legal rights they now seem desirous of protecting. It is after that they can properly come before this Court to seek justice.
Claimants must first institute in the court of Appeal, a legal challenge to the orders of this Court made behind them in. the cases now under reference before justice. That is the law.
PARTICULARS OF ERROR
I shall first treat the preliminary objection of the Appellant.
The Appellants filed the notice of preliminary objection on 21/10/2010. While the brief of argument of Appellant’s reply to the 5th – 26th Respondents was fired on 6/10/2010. By the preliminary objection the Appellants contended that the Respondents lacked locus standi and that they did not participate in the trial.
The 5th-26th Respondents in reply submitted that the preliminary objection was incompetent in that it was an abuse of court process in that having been joined by order of court on the 8th day of June, 2009 the decision of the court was a final order/decision which could not be reviewed by this Court.
On 8/6/2009 the 5th – 26th Respondents sought and obtained leave of this court to be joined as Respondents in this appeal because they had an interest in the subject-matter of the litigation which might adversely be affected by the decision of this court.
There is no appeal against the above ruling of this court. An order of a court of competent jurisdiction subsists until it is set aside. see EZEOKAFOR v. EZEILO (1999) 9 NWLR [pt.619] 513. Since the order of joinder of the Respondents still subsists the notice of preliminary objection of the Appellant challenging their joinder in this case constitutes in my respectful view an abuse of court process.
This court has a duty to protect itself from abuse of its process. See SARAKI v. KOTOYE (1992) 11/12 SCNJ; OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR [pt.966] 205. The preliminary objection is vexatious. It is therefore struck out.
Now to the main appeal. I have deeply considered the various issues formulated by the parties to this appeal. I am of the respective view that the issues can be condensed into one namely:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE JUDGEMENTS IN SUIT NUMBERS PHC/1383/2007, PHC/1503/2007; AND PHC/1575/2007 WERE A BAR TO THE CLAIMANTS/APPELLANTS ACTION
The learned senior counsel for the Appellant in his brief submitted that no judgment could operate as a universal edict or estoppel to the whole world. He posited that a judgment remained binding only on the parties to the case and their privies and as to the subject matter actually adjudicated upon in the action, even then only as far as the subject-matter affected the parties. He submitted further that what was a binding precedent “is not the concrete decision in the former case (as opposed to the reasons for the decision) but the enunciation of the reasons or principles upon which the question before the court had been decided.” He cited OSBORNE v. ROWLEIT (1880) 13 CHD 774 at 784; ADESOKAN v. ADETUNJI (1994) 5 NWLR [pt.346] at 561 – 562.
He added that courts had never taken it upon themselves to pronounce decisions which would have the effect of judging persons not before them. He cited NGWU & ORS v. ONUIGBO & ORS (1999) 13 NWLR 512. He contended that the facts of the judgments in suit PHC/1503/2007 and PHC/1575/2007, PHC/1383/2007, were not similar to the facts of the present case. He referred to the dictum of OPUTA JSC quoted and applied by ONU JSC in ADESOKAN v. ADETUNJI (supra) at 558. He cited also sections 54 and 55 of the Evidence Act, BALOGUN & ORS v. GAMBART & ORS (1990) 5 NWLR [pt.152] 572 at 583.
He submitted further that courts of coordinate jurisdiction did not bind each other. He cited FAWEHINMI v. NBA & ORS (No 2) (1982) 2 NWLR [pt.105;] 558; FA AND AB LTD v. LUPTION (1972) AC 634 AND HALSBURY’S LAWS OF ENGLAND (4th Edition) paragraphs 573, 575 and 580. Learned counsel concluded in his brief by urging this Court to resolve all the issues in Appellants favour and allow the appeal.
Counsel for the 2nd Respondent in his brief submitted that what was in issue was whether the vested rights of the Appellants to contest the Local Government Elections in Rivers State was still existing as at the time the Appellant filed their suit at the trial court.
He stated that the court having been aware of the judgments of Diepiri J as to the illegal status of the members of the 10 Respondent, gave effect to those judgments which rob the court of the jurisdiction to try the case.
Emenike N. Ebere counsel for the 1st Respondent submitted that the judgments of Depiri J were judgments in rem because they made a pronouncement on the legal status of the 1st Respondent and therefore was binding on the whole world.
He further submitted that this appeal did not border on proper application of the doctrine of judicial precedent but on the principle that judgment of court once given stood and must be respected and given effect to until set aside. He added that a Judge could not sit on appeal, over the judgment of Court coordinate jurisdiction. He cited the following cases: A.G. ANAMBRA STATE v. ONITSHA NORTH L.G. (2001) 9 NWLR (pt.717) 105 at 121; NWORGU V. NJOKU (2003) 14 NWLR (pt.734) 530 at 546; MORGREY V. IKPOTOR (2001) 12 NWLR (pt.727) 336 at 348.
Learned counsel distinguished the case of HON. TBRAHIM BALOGUN & ORS V. EMIR OF ILORIN ALHAJI SULU GAMBARI & ORS (supra) relied on by learned counsel for the Appellant and this case. He contended that what Oyeyipo C.J did in BALOGUN’S case was to choose between two conflicting judgments of Kwara state High court and to adopt the judgment of LASILE J. which was first in time.
He finally urged the court to uphold the decisions of learned trial Judge and dismiss the appeal.
Mr. Owhonda for 2nd Respondent in his brief canvassed essentially the similar arguments of learned counsel for the 1st Respondent. He submitted that the judgment of the High court of Rivers state in suit Nos. PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 were by law and convention binding until set aside.
He cited ROSSEK & 2 ORS VS ACB LTD & ORS. (1993) 10 SCNJ. 20
He submitted that the said judgments were judgments in REM and that a judgment in REM was a judgment CONTRA MUND JM binding on both parties, privies and non-parties. He cited
(1) Section 5 of the Evidence Act
(2) AKINKUNMI v. SADIQ (1997) 8 NWLR (Pt 516) 277 at 278.
(3) FOINTRADES v. UNIV ASS. CO. LTD (2002) 8 NWLR (PT.770) 669 at 723 – 724.
(4) SOSAN VS ADEMUYIWA (1986) 3 NWLR (Pt.27) at 241.
He finally urged the court to dismiss the appeal and affirm the lower court’s ruling.
Amadi Oparaeli for the 3rd Respondent in his brief of argument canvassed similar arguments to that of the other counsel.
He submitted that jurisdiction was extrinsic to adjudication and that whenever tie issue was; raised it must first be disposed of by the court before trials. He submitted that the judgment of Diepiri. J. were IN REM and not IN PERSONAM. He submitted that judgments IN REM bind the whole world. He cited:
(a) AWONIYI VS REG TRUSTEES, AMORC (2000) FWLR (PT. 25) 1592.
(b) OBONG ABIA VS CRSPI (2006) ALL FWLR (PT. 339) 955 at 972
(C) OGBAHON VS REG TRUSTEES CCCG (2001) FWLR (PT. 80) 1496 at 1526.
(d) FAFUNMI VS ONILUDE (2004) ALL FWLR (PT 219) 1053 at 1071- 1072.
Learned counsel also distinguished this case from BALOGUN & ORS VS EMIR OF ILORIN (supra).
He contended that this was not an issue of estoppel but an issue that the body on which the appellants were relying on to legitimise their claim as candidates had been pronounced upon. He finally urged the court to dismiss the appeal.
Obaye-Ekine is the learned counsel for 4th Respondent. He also filed a brief argument. He submitted that the interest of the claimants was affected by the judgments in suit Nos. PHC/1503/2007, PHC/1575/2007 and PHC/1383/2007. He added that the said judgments were IN REM. He referred to the definition of judgment IN REM in Black Law’s Dictionary 6th Centennial Edition at page 854 and the case of OGBAHON VS REGISTERED CCCG (2001) FWLR (PT. 80) 1496 at 1505 and submitted that the trial court was right when he held that the interest of the claimants in the elections to be concluded by the 1st defendants was affected by the three judgments of Diepiri J. Dike Udenna for the 5th-26th Respondents in his brief of argument submitted that the three judgments of Diepiri J, were IN REM. He cited DIKE Vs NZEKA (1986)4 NWLR (PT. 34) t44 at 153; IDRIS VS ANPP (2008) 8 NWLR (PT.1088)1 AT 120 – 121; OBOT VS ETIM (2008) 12 NWLR (PT. 1102) 754 at 776 777. He also distinguished BALOGLIN VS GAMBARI’s case from this case. He added that the case OF GAMBARI VS GAMBARI (supra) was had law.
He cited ATOLAGBE VS. ANUNI (1997) 9 NWLR (PT.522) 536 at 596.
He urged the court to dismiss the appeal and affirm the ruling of the trial court.
The 1st Respondent also cross-appealed. In his brief of argument for the cross-appellant, learned counsel for cross-appellant formulated three issues for determination in the cross-appeal. They are:-
“1. Whether the trial judge was right in determining the applications for joinder and amendment filed by the Appellants without first hearing and determining the applications challenging the jurisdiction of the court below to entertain and determine this suit?
2 Whether in the face of, the existing judgments of DIEPIRI J, in Suit Nos. PHC/1503/2007, PHC/1579/2007 and PHC/1583/2007 the trial court had the jurisdiction to entertain this suit?
3 Whether a mere filing of appeal against the aforesaid judgments of DIEPIRI J. simpliciter will restore the right of the Appellants?
On issue 1, learned counsel submitted that the trial Judge erred in law by not first determining the applications challenging its jurisdiction before going ahead to hear and determine the applications for joinder and amendment. He cited ALHAJI NAS v. SENATOR (CHIEF) ADESANYA (2003) FWLR [PT.145] 680 AT 691; ALHAJI ANESO ATANTDA ADEYEMT V. CHIEF OLAKUNRI (1999) 12 SC (pt.11) 92 and a host of other cases.
He consequently submitted that the granting of the application for joinder, the application for amendment of the statement of claim and the subsequent joinder of the 3rd Respondent and the amendment of the statement of claim were all nullities being made without jurisdiction.
He submitted further that the initial writ of summons and statement- of claim did not disclose that the claimants had locus standi but that the grant of the Appellant’s application enabled them to repair their fundamentally defective case.
On issue II learned counsel submitted that the judgment of Diepiri J’s judgment having extinguished the erstwhile rights of the Appellants had put the Appellants in a position where no primaries were conducted. He submitted further that the selection or nomination of candidates to an election was purely an intra-party affairs on which the court had no jurisdiction.
He cited OKAFOR v. ONUOHA (1983) NSCC 494 at 49’3 – 497; DALHATU v. TURAKI (2003) 15 NWLR [pt.843] 310 at 334 – 335 and other cases. He posited that the learned trial Judge did not apply the true effect of the judgments of Diepiri J in resolving the jurisdictional issue. He urged the court to resolve issue II in favour of the cross-Appellant.
On issue III, learned counsel submitted that it was not the law that as soon as leave to appeal was granted and appeal filed Appellants could institute their claim before the trial court. He contended that Appellant’s right to come before the court below would only arise when the appellate, court had set aside the judgments of Diepiri J. He cited OREDOYIN v. AROWOLO (1989) 4 NWLR at 114 172 at 211; JADESIMI v. OKOTIE-EBOH (1986) NWLR [pt.16 264 at 274.
He finally urged the court to allow the cross-appeal and affirm the decision of the court below on grounds other than that for which the trial court dismissed the suit.
The 1st set of Respondents in their Reply brief formulated three issues for determination namely:
“(i) whether the notice of appeal filed without leave where leave is required is valid to invoke the jurisdiction of this Court.
(ii) whether the cross appeal in this case is the proper procedure for a respondent who otherwise supports the judgment of the trial court.
(iii) In the alternative whether there is any substance in the cross-appeal as presently constituted and argued.
The Appellants also raised preliminary objection to the cross-appeal. Namely:-
(i) that the cross-Appellant failed to obtain leave before appealing against interlocutory decision of the trial court act of time.
(ii) That the notice of appeal being contrary to section 242 of the 1999 Constitution is incompetent.
(iii) The 5th – 26th Respondents applied to on this appeal on their own.
(iv) The Respondents did not appeal against the decision of the trial court or file a Respondent’s brief.
The cross-Appellant in his reply brief submitted that there was a valid Notice of cross-Appeal challenging the decisions of the lower court which the Cross-Appellant was challenging. He submitted further that the fact that the statement “To affirm the decision of the lower court on the reasons other than the ones given by the lower court in its ruling of 25.09.08” could not transmit the cross-appeal to a Respondent Notice.
I shall first treat preliminary objection to the cross-appeal and later if need be consider the cross-appeal.
(1) Should the Cross-Appellant have obtained leave before appealing against the interlocutory decision of the trial court?
Sections 241 and 242 of the Nigerian Constitution 1999 are on when leave of court is necessary in an appeal from the High court or Federal High Court to the Court of Appeal. Section 241 of the Constitution reads:
“(1) An Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions Of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court-
(i) where the liberty of a person or the custody of an infant is concerned;
(ii) where an injunction or the appointment of .a receiver is granted or refused;
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise;
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability; and
(v) in such other cases as may be Prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Section 242 of the Constitution also reads:-
“242. Appeals with leave
(1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.”
Section 242 of the Constitution is subject to the overriding provision of S. 241. Section 242 (b) of the Constitution provides that decisions in any civil proceeding or criminal proceeding, an appeal can lie to the court of Appeal once the grounds of appeal involves questions of law alone. In any other case, not covered by section 241 of the Constitution, appeals against such decisions shall be with leave of court.
The cross-Appellant did not submit that the cross-appeal was not against the interlocutory decision of the court neither did he submit that the grounds of appeal were on law alone.
His submission in his brief was that he had already sought leave of court in his notion on notice date 29/1/2010. This is not true.
In his motion on notice filed on 29/1/2010 and granted on 17/2010 the cross-Appellant/Applicant asked two prayers.
(i) Extension of time to cross-appeal.
(ii) Extension of time to file and serve its notice of appeal and grounds of appeal.
No leave of court was sought for or granted by this court on 1/7/2010. Failure to obtain leave where it is required renders any appeal incompetent. See NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR [pt.212 652; S.P.D.C. (Nig) LTD v. KATAD (NIG) LTD (2006) 1 NWLR [pt.960] 198. ALAMIEYESEIGHA V. C.J.N. (2005) 1 NWLR (pt.900) 60.
In the light of the above I hold that this cross-appeal is incompetent the cross-Appellant having failed to obtain leave of court which is a condition precedent for the cross-appeal. The cross-appeal is therefore struck out.
Another reason why I hold that this cross-appeal is incompetent is that the cross-Appellant has not complained against the decision of the court dismissing the suit.
An appeal is an invitation to a higher court to review the decision of a lower court – see OREDOYIN V. AROWOLO (1989) 4 NWLR [pt.114] 172. When the contention is that the decision of the court below should be affirmed on grounds other than those relied upon by that court the party must give notice to that effect specifying the grounds of the contention. See Order 9 Rule 2 of the court of Appeal Rules 2007.
The cross-Appellant has not appealed against the decision of the court below. In fact in the concluding part of his brief learned counsel for cross-Appellant stated –
“In the light of the foregoing submissions, we urge this Court to allow the cross-Appeal and affirm the decision of the court below on grounds other than it dismissed the Appellants’ suit.”
The submission of cross-Appellant that it would amount to technical justice to hold that a Respondent’s Notice was not needed holds no water.
This cross-appeal is incompetent. It is accordingly struck out.
Now to the main appeal. As earlier stated, the issues formulated by learned counsel in other case can be distilled down to one issue to wit:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE JUDGMENTS IN SUIT NUMBERS PHC/1383/2047, PHC/1503/2007 AND PHC/1575/2007 WERE A BAR TO THE CLAIMANTS’/APPELLANTS’ ACTION.
Suit Numbers PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 are judgments of a High Court which has co-ordinate jurisdiction with the court below in the appeal. It is trite law these decisions are of persuasive authority to the court below. See OBEYA V. SOWADE (1969) NNLR 17; 1969 (1) NMLR 112; see also POLICE AUTHORITY FOR HUDDERS FIELD v. WATSON (1947) KB 842 at 848.
If the learned trial Judge agrees with the decisions in the judgments he is right, to follow them. On the other hand if he disagrees with the said decisions, he also would be right to arrive at a different decision.
In this case the lower court chose to follow the decisions of Diepiri J. in PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 I do agree that a decision of a Judge of concurrent or co-ordinate jurisdiction cannot be binding as between them. See IBRAHIM LATUNDUN BALOGUN & ORS V. EMIR OF ILORIN ALHAJI SULU GAMBARI & ORS. (supra)
I have gone through the judgment and proceedings of the trial court as contained in the Record of Appeal. I am with due respect unable to see where the trial Judge herd himself band by the judgments of Diepiri J. I understand him to be persuaded by the said judgments hence their application to this case by the trial Judge.
The said judgments were pleaded in the statement of defence.
The Defendants had filed Notice of preliminary objection to the action based on the judgments of Diepiri J. one of the judgments was exhibited to the supporting affidavit of the Notice of preliminary objection. The said judgment interpreted .the provision of the amended Rivers stat: Independent Electoral Law vis-a-vis the composition of 1st Respondent in this appeal.
The claimants in the court below had sought the following reliefs among others:-
(a) declaration that the claimants remained the validly nominated candidates of the 3rd Respondent for all offices for the Local Government election in Rivers State having been validly nominated by the 3rd Respondent at a valid party Primary congress for that purpose.
(b) Declaration that the purported and/or implied cancellation of the previous primaries by the 3rd Respondents was unlawful unconstitutional, void and of no effect as was the Purported repeat of the said Primaries and the nominations and the new nominations by the Party.
(c) Declaration that any election into the Local Government Councils in Rivers State without the participation of the claimants as the duly nominated candidates of the 3rd Defendant/Respondent amounts to unlawful exclusion.”
It is pertinent to note that the 1st claimant in the court below was Rivers State Electoral Commission and the action is in respect of a Local Government Election which Diepiri J. in the said judgments had held that the 1st claimant could not conduct it not being properly constituted.
The judgments of Diepiri J are judgments in rem which determine the status of the 1st Respondent/Claimant. See OGBORU v. IBORI (2005) 13 NWLR [pt.942] 319 such judgments unlike judgments in personam binds all persons whether a party to the proceeding or not. See OGBORU”s case (supra). See OGBAHON v. REGISTERED TRUSTIEES CCCG (2001) FWLR [pt.80] 14 96 at 1505. I hold that the judgments are binding on the Appellants.
I hold that the learned trial Judge was on sound footing to have been persuaded by the judgments of Diepiri J. I hold that the learned trial Judge was right in holding that the judgments in suit numbers PHC/1383/2007, PHC7/503/2007 and PHC/1575/2007 were a bar to the Claimant’s/Appellant’s action having been persuaded by said judgments.
I resolve all issues formulated in this appeal against the Appellant. This appeal fails in its entirety. It is accordingly dismissed.
ISTIFANUS THOMAS, J.C.A.:
I read before now, the lead judgment of my learned brother, AWOTOYE JCA, just delivered, I agree that the substantive appeal has no merit whatsoever, and it ought to be dismissed I hereby dismiss the appeal. But by way of emphasis, I would like to contribute in respect of the positions in relation to two different court’s decisions of coordinate jurisdiction. I have carefully considered that, the judgments in different suits numbers PHC/1503/2007; PHC/1575/2007 and PHC/1383/2007 respectively, are decisions of courts of Record of Rivers State High Court; and the same respect and honour, applies to the decis on of another court of record appealed against, which is suit number PHC/50/2008.
In the former three judgments delivered by Diepiri, J it was a clear judgment in rem as it decided the status of the present 1st respondent, namely the Rivers State Independent Electoral Commission. A judgment in rem is an adjudication pronounced upon the status of a particular subject matter by a court of record or a tribunal for that purpose. It is founded on proceedings instituted to determine the status of a particular subject matter such as; in the instant appeal and the judgments of Diepiri J. related to power to hold Local Government Election in River State. The status of the Rivers State Independent Electoral Commission declared are binding on all parties or no-parties in so far as their interest in the electoral matter are affected, see the cases of Ogbahon vs Registered Trustees, CCCG (2001) FWLR (Pt.80) 1496; Ogbonn v. Ibori (2005) 13 NWLR (PT.942) 319; Oke v. Afoloye (1986) 1 NWLR (PT. 15) 241.
A judgment in rem bind all persons whether a party to the proceedings or not. In the instant appeal, it is of no moment for the appellants to merely aver, that they were not parties to the judgments delivered by Diepiri (J) in suits Nos. PHC/1503/2007; PHC/1575/2007 and PHC/1383/2007. The three judgments bind the instant appellants whether they are parties or not. It is irrelevant for the appellants to say they were not aware of the proceedings in the previous judgments, Even if they traveled to the moon or galaxy, they are estopped from denying that their interest in the judgments of Diepiri, J, affected them. To the best of my understandings the appellants were aware of the bindingness of the sound decisions in the previous judgments, but instead of asking for extension of time to appeal, they made fuss of applying at the lower court in the instant appeal, their purported application which was filed by a writ of summons on 14th January, 2008, the decisions of Diepiri is still valid and strong as there is no appeal against them. The appellants had averred that, they are members of the People’s Democratic party (PDP) and that they have a vested right to be sponsored by their said political party as the only legitimate candidates for the Rivers state Local Government Election. By these admissions’ the appellants cannot be believed that they were not parties or privies to the decisions of the high court of Justice in Port Harcourt decisions effectively delivered by the Hon Justice Diepiri, which constituted an impediment to their right to institute suit PHC/30/2008 without first appealing to set aside the three judgments aforestated.
In conclusion, I affirm the decision of the trial judge in his ruling delivered on 23rd September, 2008, in which it was clearly declared that the interests of the appellants had affected them in suits numbers PHC/1503/2007; PHC/1575/2007 and PHC/1383/2007 respectively.
Based on my own contribution, and the fuller detailed lead judgment of my learned brother, the appeal is dismissed in toto.
It has no merit.
I abide with consequential orders including costs.
EJEMBI EKO, J.C.A.:
I read in advance the judgment just delivered by my learned brother, T.O. AWOTOYE, JCA. The judgment resolved all the issues in the appeal. I am in agreement with the analysis of the issues and the conclusions on them.
Accordingly, I hereby adopt all the consequential orders made in the lead judgment.