Dr. Alex Otti & Anor V. Dr. Sampson Uche Chuckwu Ogah & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The facts are relevant to this application.

The 1st and 3rd Respondents are members of the Peoples Democratic Party, the 2nd Respondent herein, while the 1st Applicant is a member of the All Progressives Grand Alliance, the 2nd Applicant herein.

The 1st and 3rd Respondents as members of the 2nd Respondent therefore participated in the 2nd Respondents Governorship Primary Election for Abia State on 8th December, 2014 wherein the 2nd Respondent returned the 3rd Respondent as the winner of the said Abia State Governorship Primary Election while the 1st Respondent came second in the said primary election.

Dissatisfied with the declaration of the 3rd respondent as the winner of the 2nd Respondents Governorship Primary Election and upon the 1st respondent becoming aware that the 3rd respondent breached the 2nd respondents Electoral Guidelines for 2014 and Section 31 (2), (5) and (6) of the Electoral Act 2010 (as amended), the 1st respondent commenced an action by originating summons at the Federal High Court in Suit No. FHC/UM/CS/94/2015 which later was culminated into suit

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No. FHC/ABJ/CS/71/2016 upon the transfer of the said suit to the Federal High Court Abuja Division.

In the 1st respondents Amended Originating Summons in the said suit filed by him, several reliefs were claimed and numbering from 1-13 as evidenced and shown at pages 34-40 of Exhibit “AU1 attached to the applicants further affidavit in support of their application.

In its Judgment delivered on 27th June, 2016, the trial Court granted the aforesaid reliefs claimed by the 1st respondent and further ordered that INEC should forthwith issue a certificate of Return to the 1st Respondent as Governor elect and restore all entitlement to him as the elected Governor of Abia State. Following the delivery of the aforesaid judgment, the applicants brought an application at the Court below on the 15th July, 2016 seeking for the following reliefs among others:-

1. An order granting the Appellants/Applicants leave to appeal as interested persons against the final judgment of the Federal High Court Abuja Division, delivered on 27th June, 2016 in Suit No: FHC/ABJ/CS/71/2016 (FHC/UM/CS/94/2015-DR. SAMPSON UCHECHUKWU OGAH

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PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS.

2. An order deeming the Notice of Appeal already filed on the 15th Day of July, 2016 against the said judgment as properly filed and served, the appropriate filing fees thereto having been paid.”After hearing the respective parties in the aforesaid application, the Court below in its considered ruling delivered on the 5th August, 2016 dismissed same and hence a notice of appeal was filed to this Court by the appellants/applicants herein against the said ruling on the 17th August, 2016.The application which is the subject matter of contention now before us was filed on the 15th September, 2016 and pursuant to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 3 Rule 15, Order 6(2) (1) of the Supreme Court Rules 1985 (as amended) and under the inherent jurisdiction of this Court filed 15th September, 2016 and seeking for the following reliefs:
3. AN ORDER of this Honourable Court granting leave to the Appellants/Applicants to appeal against the decision of the Court of Appeal Abuja Division delivered on 5th day of August, 2016 in Appeal No:

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CA/A/390/2016: Dr. Alex Otti & Anor Vs. Dr. Sampson Uchechukwu Ogah & 4 ors, on grounds of mixed law and facts as set out in the Notice of Appeal already filed at the Court of Appeal, Abuja Registry on the 17th day of August, 2016.

2. AN ORDER of this Honourable Court deeming as properly filed and served the Notice of Appeal filed at the Court of Appeal Abuja registry on the 17th day of August, 2016 the correct filing fee having been paid.
3. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case.”

In support of the motion is an affidavit of 15 paragraphs sworn to by one Abdulrasheed Usman Esq. one of the counsel representing the appellants/applicants. There is a further Affidavit and a further and Better affidavit sworn to by the same deponent. Also predicating the application are ten grounds enumerated as (I-X) and reproduced hereunder as follows:-

“GROUNDS OF THE APPLICATION

i. The Federal High Court, Abuja delivered its judgment in Suit No. FHC/ABJ/CS/71/2016 on the 27th day of June, 2016.

ii. The Appellants/Applicants being affected with the judgment filed an

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application to the Court of Appeal to be allowed to appeal against the said decision of the Federal High Court, Abuja delivered on the 27th day of June, 2016, as interested parties.

iii. The Court of Appeal delivered its ruling on the application in Appeal No. CA/A/390/2016 and dismissed the application.

iv. The Appellants/Applicants being dissatisfied with the said ruling is (sic) desirous of appealing against the said decision.

v. The Appellants/Applicants had filed a Notice of Appeal at the Court of Appeal Registry and which has formed part of the record before this Court

vi. Some of the grounds of appeal are not exclusively on grounds of law.

vii. The Appellants/Applicants are constitutionally required to seek and obtain the leave of this Honourable Court to appeal on grounds of mixed law and facts.

viii. The leave of this Honourable Court is sine qua non to the validity of the concerned grounds of appeal.

ix. The Appellants/Applicants have arguable Grounds of Appeal.

x. This application is made in the interest of justice.”

For Purpose of substantiating the application, their counsel Mr. Yusuf Ali, SAN filed a

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written address on the 30th September, 2016.

On behalf of the 1st respondent, a counter affidavit was filed on the 7th October, 2016 and was supported by a written address in opposition to the application. There is also a counter affidavit filed on the 6th October, 2016 on behalf of the 2nd Respondent which was supported by a written address. Furthermore, and on behalf of the 3rd Respondent, two affidavits i.e. to say a counter and a further counter affidavits were filed on the 21st September and 6th October, 2016 respectively as well as a written address in opposing the motion filed. The 3rd respondent also deemed it pertinent to attach the final judgment of the lower Court delivered on the 18/8/16. Replies were also filed on the 10th October, 2016 in response to the 1st, 2nd & 3rd respondents and on the 11th October, 2016 also to that by the 5th respondent respectively. The 4th respondent did not file any process in respect of the application. On the part of the 5th respondent a counter affidavit was filed on the 11th October, 2016 as well as a written address.

On the 8th November, 2016 when the application was heard, the senior counsel, Mr.

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Yusuf Ali, SAN with his brother silk, Mr. P. I. N. Ikwueto, SAN also in company of other counsel, represented the appellants/applicants. Dr. Alex Izinyon, SAN with D Okpeseyi, SAN and leading a host of counsel in chambers represented the 1st respondent. The learned senior counsel Dr. Onyechi Ikpeazu, SAN also in company of his brothers silk Dr. Paul Ananaba, SAN and prof. Ernest Ojukwu, SAN led a number of counsel and represented the 2nd respondent. Chief Wole Olanipekun, SAN with Chief Kanu Agabi, SAN, S. F. Hon, SAN and J.U.K Igwe, SAN and a teeming number of other counsel represented the 3rd respondent. The 4th respondent was represented by Mrs. Wendy Kuku, leading R. Aminu (Mrs) and Ahmed Gani Ismaila. Finally, the 5th respondent was represented by Mr. J. C ldoko appearing with Ben N. Ukandu, John Adah and ljeoma Okaye (Miss).

At the hearing of the application, all counsel with exception of the 4th respondent adopted and relied on their respective processes filed. While the appellants/applicants counsel urged for a discretion to be exercised in favour of their clients by granting the reliefs sought, the respondents were vehement and prayed that the

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application should be dismissed because the matter is non-existent There was nothing to urge on behalf of the 4th respondent.

In submission to substantiate their application, the senior counsel for the appellants/applicants related copiously to Exhibit AU1, being the judgment of the Federal High Court from whence the following statements of facts are evident:-

1. That the Court found that the 3rd respondent herein, who submitted false information in his form CF001, was not qualified to contest the 2015 Abia State Governorship Election.
2. Trial Court also found that 1st respondent who contested primaries with 3rd respondent should be recognized as the candidate of the PDP at the April, 2015 Abia State Gubernatorial Election.
3. That the Court made a consequential order that 1st respondent be issued with a Certificate of Return.

Learned counsel related closely to Section 31(5) and (6) of the Electoral Act 2010. It is the submission of counsel further that his clients became aware of the judgment only through the media and filed an application to the lower Court to be allowed to appeal as interested party. This is in view of the

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applicants having participated at the election and having scored the second highest number of lawful votes: that the lower Court in its ruling delivered on the 5th day of August, 2016 dismissed the application and hence the appeal filed before this Court on the 17th August, 2016. It is the counsels contention that the notice of appeal filed at the Registry of the Court of Appeal is of mixed law and facts. The counsel submits the necessity of this application to seek the leave of this Court therefore before the appellants can argue the ground of mixed law and fact in their Notice of appeal.

In urging for an exercise of discretion in favour of the application, the learned counsel for the appellants/applicants re-iterates strongly that with the ruling of the lower Court delivered on the 5th August, 2016 being a final decision, the relief sought for is within their constitutional right. This, counsel submits because their application is not seeking leave to appeal outrightly in view of an already existing notice and grounds of appeal filed 17th August, 2016 as shown on the record of appeal at pages 422-430 and which is sufficient to sustain the entire

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appeal as competent. To buttress his submission further, the learned counsel cites copiously the provision of Section 233 (2) (e) (iv) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) as well as decided numerous case laws in support. It is counsels further submission that the law enjoins an appellant to seek the leave of Court in instances where the notice of appeal contains grounds of mixed law and facts; that the leave of Court serves as pre-condition upon which concerned grounds are properly filed before the appellate Court; In the absence of the leave, the grounds will be rendered as incompetent and liable to be struck out as it was held by this Court in the case of Abubakar v. Dankwambo (2015) 18 NWLR (pt. 1491) 213 at 234-235; that the consequential effect of the failure to seek the leave of Court to regularize such grounds robs the appellate Court of jurisdiction to consider and pronounce thereon, the grounds. Again, the counsel cites in support the decision of this Court in Akiwiwu Motor Ltd v. Songonuga (1984) ANLR (Reprint) 309 at 311.

The application, counsel contends, relates to ground 4 of the grounds of appeal only

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and does not affect the other grounds which are valid and subsisting before the Court; that this application is brought out of abundance of caution in order to save ground 4 in the Notice of Appeal; that the appellants/applicants have placed before this Court sufficient facts in the depositions of their affidavits in support for the determination of this application.

In further submission, the applicants counsel related copiously to the facts deposed to in their further and better affidavit wherein they acknowledged the two separate appeals filed by the 1st respondent against the decisions of the lower Court in Appeal No. CA/A/390/2016 and CA/A/390A/2016 and the appeals are entered in this Court as SC. 717/2016 and SC. 719/2016, and are pending before this Court. For the foregoing following reasons therefore, the applicants counsel re-iterates strongly that their constitutional right of appeal should not be tampered with, simply on the ground that judgment had since been delivered by the lower Court; that the Court of Appeal having refused the appellants/applicants’ leave to appeal, proceeded to determine the appeal before it without and in the absence of the appellants/applicants. This, counsel submits, is sufficient to raise a threshold issue of denial

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of right to fair hearing; that since an appeal is a continuation of the case, the learned counsel has urged this Court to see the reliefs which the present appellants/applicants are seeking from this Court vide their Notice of Appeal filed 17th August, 2016; that the appellants constitutional right of appeal against the decision of the Court of Appeal refusing them leave to appeal as interested party, remains extant and ought to be respected; that the issues raised in the instant appeal relate to the right of fair hearing and the constitutional right to such is synonymous with the common law principles of natural justice. Counsel cites in support the cases of 7-up Bottling Co. v. Abiola & Sons (Nig) Ltd. (1995) 3 SCNJ 37 (1995) 3 NWLR (Pt. 383) 257 and Deduwa V. Okorodudu (1976) 1 NMLR 236 at 146; that the judgment of the lower Court in the substantive appeal has not affected appellants/applicants pending appeal before this Court in any way. This, counsel argues because in the substantive appeal, the prayer is asking the Court to invoke Section 22 of the Supreme Court Act; that all the issues raised by the respondents against this

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application can be canvassed appropriately in the substantive appeal and not at this stage.

The learned counsel submits finally that the application should be granted in the interest of justice.

In opposing the Application, a 12 paragraph counter affidavit was filed on behalf of the 1st respondent on the 7th October, 2016. In the said counter affidavit, the learned senior counsel Dr. Alex A. Izinyon, SAN who represented the 1st respondent, gave a detailed background history of this case and relied copiously on all the paragraphs deposed to in their counter affidavit and also the Exhibits A and B which are the judgments of the Court below setting aside the judgment of the Federal High Court Abuja.

Counsel submits vehemently that a careful perusal of the appellants relief 1, will reveal clearly that it is the entire grounds of appeal that are on mixed law and facts which leave is required to file same. Counsel further re-asserts the trite law that, for a ground of mixed law and fact to be competent, leave of Court where such notice is to be filed, must be obtained first as a condition precedent to the filing of

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the ground. Counsel cites in support the provision of Order 2 Rule 28(3) and (4) of the Rules of this Court and a host of case laws in B.A.S.F. (Nig) Ltd. V. Faith Ent. Ltd (2010) 4 NWLR (pt. 1183) 104 at 128 paras. D-H; also the cases of Opuiyo v. Omoniwari (2007) 16 NWLR (Pt. 1060) 415 at 440; C.C.B. (Nig) Plc v. A-G Anambra State (1992) 8 NWLR (pt.261) 528 at 545 and Comm. Education, Imo State v. Amadi (2013) 13 NWLR (pt. 1370) 133 at 148.

It is the argument of counsel further that the applicants herein have not shown any exceptional circumstance to warrant bringing this application directly to this Court; that with the applicants application at the Court below having been dismissed on 5th August, 2016, they had every opportunity between the said date and the 17th August, 2016 when they filed their said notice of appeal to have filed an application at the Court below for leave to appeal on grounds of mixed law and fact; that this, they had failed to do and have not shown any exceptional circumstance why discretion should be exercised in favour of their application. The learned senior counsel restates the trite principle of law that where a

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law prescribes a procedure for doing an act, it must be rigidly followed. The senior counsel cites in support the case of Amaechi v. INEC (2008) All FWLR (pt. 407) 1 at 98 a decision of this Court, also the case of C.C.B Nig. Plc. V. A.G. Anambra State (Supra) that in the case at hand, the applicant failed to comply with the procedure prescribed by the aforesaid Rule of Court and as a result their application should be dismissed. Counsel urges the Court to discountenance the assertion by the applicants counsel that their said application relates to ground 4 of their notice of appeal only; that the submission, counsel argues is highly misconceived.

On a further contention, the learned counsel submits the application as being academic and is therefore spent; that the reliefs which the applicants want this Court to consider and grant by invoking Section 22 of this Courts Act are the ones in the Notice of Appeal before the Court below, and with the Court below having set aside the judgment of the Federal High Court based on 2nd and 3rd respondents appeal, the invocation of Section 22 of the Supreme Court Act will be nothing other than an

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academic exercise. Counsel cites a number of decided case laws in support of his argument and urges finally that the application be dismissed for lack of merit.

In the address filed on behalf of the 2nd respondent, the two issues raised to oppose the motion on notice filed on 15/9/2016 are as follows:-

1. Whether having conceded that the grounds of Appeal in the Notice of Appeal filed on 17th August, 2016 require leave, this application is competent before the Supreme Court.
2. Whether the Applicants are entitled to the reliefs sought by them in the motion paper.

Submitting on behalf of the 2nd respondent, the learned senior counsel, Dr. Onyechi Ikpeazu, SAN drew the Courts attention to paragraphs 8, 9, 10 and 11 of the affidavit in support of the applicants application and re-iterates that they did not specify the grounds on which the leave was required by reason of which none can be excluded. As a consequence, that it is not for this Court to decipher which ones were or were not validly filed without the leave of the Court of Appeal, which being a pre-condition to the validity of the appeal renders the entire process nugatory

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if the prescribed leave was not obtained. Copious reference was made to Section 233(1) of the Constitution of the Federal Republic of Nigeria 1999 and Order 2 Rule 28(4) of the Rules of Court to the effect that the application for leave not having been made in the first instance at the Court below, it cannot now be made at the level of this Court; that where as in this case, the applicants did not specify any ground of appeal which is excluded from the application so as to sustain a valid appeal as of right, the appeal could not have been incepted at all without the leave of the Court of Appeal in the first instance; that without a valid appeal, there can be no valid compilation of record of Appeal, which is instrumental to a valid entry of appeal, that the operative relief 4(ii) in this purported appeal which prays this Court to invoke the provisions of Section 22 of the Act to consider and grant the reliefs subscribed on the Notice of Appeal that was before the Court of Appeal may only be viable if the decision of the Federal High Court was extant; that the position is now different since the decision against which the leave to appeal is

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founded no longer exists, that in the absence of any judgment a person cannot conceivably be an aggrieved party or a party interested in the outcome of an adverse judgment; also that in the absence of any existing judgment there cannot be any right of appeal as sought for in this application.

The 3rd respondent as a party to this application also raised an issue in tandem with the counterpart respondents and the applicants, that is to say whether or not the application is grantable in the circumstance. The learned counsel Mr. Olabode Olanipekun counsel for the 3rd respondent concurred with the earlier arguments on the academic nature of the application which is not worth considering. Counsel submits further that an academic appeal is not arguable; that an interlocutory appeal has no reason to exist after the substantive appeal had been heard and determined. Counsel submits that the decision, applicants are seeking the leave of this Court to appeal against, was given as a ruling on August 5, 2016 in substantive Appeal No. CA/A/390/2016 (and not in Appeal No. CA/A/390C/2016, as applicants have misleadingly stated in paragraph 1 of their written address)

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before the determination of the substance of that appeal on August 18, 2016. For purpose of drawing the line between interlocutory and final decisions counsel cites the decision of this Court in Alor & Anor v. Ngene & Ors. (2007) 17 NWLR (pt. 1062) 163 at 175; that the decision in respect of which leave is sought to appeal against is an interlocutory decision of the lower Court which cannot enure when a lower Court has already delivered its final judgment. Counsel cites in support the case of this Court in Olori Motors Co. Ltd. V. B.N. Plc (2006) 10 NWLR (pt. 989) 586 at 606.

It is the submission of counsel also that the right of a party to appeal is not without its limitations. Hence in the case at hand, the Court should consider whether such appeal is arguable; that the Court has the inherent powers to refuse to entertain an appeal which is patently incompetent; See Rabiu v. State (1980) 12 NSCC 291.

The counsel submits further that by the judgment of the lower Court delivered on August 18, 2016 in Appeal No. CA/A/390/2016 and Appeal No. CA/A/390A/2016, the judgment of the Federal High Court no longer exists. In other words, that the issue

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of leave to appeal against the decision of the Federal High Court is spent and lifeless, since the Court of Appeal has already finally and conclusively entertained and determined appeals against the same decision; that contrary to the submission by the counsel for the applicants, there is nowhere in the applicants motion paper stating that ground 4 is that in respect of which leave is sought. The sole reference made to ground 4, counsel argues is not only untrue, but also an afterthought. Counsel cites several authorities in support and urges further that by parity of reasoning the claims in the instant motion paper do not make any reference remotely or proximately, to ground 4 of the notice of appeal as wrongly conceived by the applicants counsel; that by the use of a general phrase, some of the grounds of appeal it makes the application speculative and the reason why the Court should also refuse same on this ground; that parties should be encouraged to pursue appeal against final decisions rather than appealing interlocutory decisions as pronounced by this Court in Eligwe V. Okpokiri & 2 Ors. (2014) LPELR

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SC/475/2011. Counsel urges for the dismissal of this application without much ado and with substantial costs.

In summary, the reply by the applicants in response to the 1st, 2nd and 3rd respondents are very succinct and to the Point. For instance the learned counsel for the appellants/applicants reiterates that the Court should discountenance the arguments by the respondents that the application is either academic or that the activation of Section 22 of the Supreme Court Act will render it academic. This, Counsel submits, is in view of the existing competent and valid notice of appeal having been entered in this Court predicated on a valid record of appeal, duly compiled. Also, that contrary to the submission on behalf of the 3rd respondent, the applicants cannot appeal against the lower Courts decision in Appeals Nos. CA/A/390/2016 and CA/A/390A/2016 because they are not parties in those appeals. Finally, that by the use of the phrase some of the grounds of appeal in the application, it presupposes that not all the grounds of appeal are affected by the application. In other words, while the application applies to the incompetent

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grounds of appeal, it does not apply to the existing grounds that are competent. Counsel finally solicits for the applicants right to be heard.

The lone issue for determination is:

Whether considering the materials placed before this Honourable Court coupled with the peculiar facts and circumstances of this case, this is a case to exercise the Courts discretion in favour of a grant of this application.

It is trite law that in an application of this nature, an applicant for leave to appeal must show by good and substantial reason why the appeal ought to be heard and this must be exhibited by a Notice of appeal showing arguable grounds of appeal if leave is granted. The grant of leave is not a matter of course as rightly submitted by the respondents counsel. It is also not necessary that the appeal should have merit, but the question is whether there is a right and reason to appeal.

The law is well settled also that the grant or refusal to grant leave to appeal to an appellant/applicant is a matter of discretion of the Court. However, such discretion is to be exercised judicially and judiciously. See the case of Ukachukwu v. PDP (2014)

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All FWLR (pt. 728) 887 at 911 wherein it was held that:-

In an application which calls for the exercise of the Courts discretion, the discretion must be exercised judicially and judiciously taking all the facts and circumstances of the case into consideration.

The application of this nature is seeking leave in respect of grounds that are not on pure law and the situation is not the same as one seeking leave to appeal in absolute terms.

It is on record affirmatively that the appellants/applicants filed a valid, competent and subsisting notice of appeal Exhibit AU3. The said substantive appeal is challenging the refusal of the Court below to grant the appellants/applicants leave to appeal as interested parties against the consequential orders contained in the judgment of the trial Court. At pages 422-430 of the Record of Appeal the decision of the Court of Appeal delivered on the 5th day of August, 2016 is a final decision which prevented the appellants from appealing against the orders made by the learned trial judge. Being a final decision the appellants/applicants have a right of appeal. By Section 241(1), 244(2) and 245(1)

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of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) every citizen of Nigeria has the right to approach a higher Court to exercise his right of appeal as provided.

In the matter at hand and under consideration, it is only in respect of ground 4 therefore that leave to appeal on ground of mixed law and fact is sought.

As rightly submitted by the learned senior counsel for the appellants/applicants, the law is well settled that one competent ground of law alone is enough to sustain an appeal to this Court. See Nwaolisah v. Nwabufor (2011) 14 NWLR (Pt. 1268) 600 at 625 also Abubakar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 213 at 244 decisions of this Court.

Section 233(2) (e) (iv) of the Constitution is also clear that an appeal shall be from decisions of the Court of Appeal to this Court as of right. The appellants/applicants have the constitutional right to appeal against the decision of the lower Court made against them. See PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205 at 273, 240. This Court while putting succinctly the issue of right of appeal had this to say in the case of Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264 at 340-341.

It is the glory, happiness and pride of

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Nigerias various Constitutions that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved, he had another Court to which he can resort to for relief. For this purpose, the law furnishes him with the right of appeal as of right. If there is no appeal at all possible the system would be intolerable. The doors of the appellate Courts have to be kept open if rights and freedom are to be preserved. (Emphasis provided).

See also the cases of Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168 at 183-184 and Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) at 178 where it was held by this Court that a party should never be denied the right of appeal if he satisfies the conditions for appeal. See again Katol Inv. Ltd v. UACN P.D. Co. Plc (2011) 16 NWLR (Pt. 1273) 211 at 223.

It is also the requirement of the law that an appellant should seek the leave of the Court in instances where the notice of Appeal contains grounds of mixed law and fact; the leave of the Court serves as pre-condition upon which concerned grounds are properly filed before the appellate Court, failure of which

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the defective grounds may be struck out. See this Court in the case of Abubakar v. Dankwambo (supra) at 234-235 wherein it was held that:-

Where leave, which means permission is a pre-condition before an appellant can file a notice of appeal, containing grounds of mixed law and fact, an appellant who files a notice of appeal without satisfying or obtaining that pre-condition would have his process thrown out. In the instant case, the appellant having not obtained leave of the Court of Appeal was caught by the provisions of Section 242 of the Constitution and grounds, 1, 2, 4, 5 and 6 in the notice of Appeal were correctly struck out by the Court of Appeal.

When the law lays down a condition that leave is to be sought and obtained before filing grounds of appeal on mixed law and facts, this does not give a reason for exploitation by the opposite party in making it difficult for the applicant to access the discretion of Court. In other words, when the law expects the applicant to lay before a Court all materials necessary for the exercise of discretion in his favour, the respondent is not to be subjective in his opposition but rather allow

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the principle of law and objectivity to apply. This is more so especially when regard is had to the submission made on behalf of the appellants/applicants that they cannot appeal against the lower Courts decisions in Appeals Nos. CA/A/390/2016 and CA/A/390A/2010 because they were not parties therein. The applicants application borders squarely on their right to be heard on a case that affects their interest. I seek to restate at this point also that the applicants right to fair hearing as provided under Section 36 of 1999 Constitution of the Federal Republic of Nigeria (as amended) is inviolable and as such cannot be denied on the grounds of technicalities. See Abubakar V. Yaradua (2008) 4 NWLR (1078) P. 465, wherein this Court reiterated in strong terms that Courts are to do substantial justice without due regard to technicalities.

The appellate Court is also enjoined not to prejudge on interlocutory appeal issues arising in a pending substantive appeal. See the case of Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) page 287 at 298.

At paragraph 3.18 of his written address, the 1st respondent contends that

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the grant of this application will confer legal stamp of validity on their notice of appeal filed on 17th August, 2016. It is warned in the earlier case of Magnusson v. Koiki (supra) that an Appeal Court should refrain from delving into the merit of the substantive question before it, at an interlocutory stage. At page 298 for instance, this Court said:-

In an appeal arising from an interlocutory decision, care should be taken by an appellate Court to avoid making an observation which may appear to re-judge the issues yet to be determined in the substantive appeal.

By the very nature of this application and the justice it seeks to serve, it will not, make it an academic exercise, contrary to the submission by the 1st respondents counsel that the activation of the provisions of Section 22 of the Supreme Court Act will be nothing other than an academic exercise.

The failure of an appellant to seek the leave of Court to argue grounds of mixed law and facts which are subscribed on the Notice of Appeal touches or robs the appellate Court of its jurisdiction to consider and pronounce on such grounds as they are

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deemed incompetent before the Court. For instance, in the case of Akiwiwu Motors Ltd v. Sangonuga (1984) ANLR (Reprint) 309 this Court had this to say at page 311:-

This Court has, in a series of cases, decided that where grounds of appeal involve questions of facts alone or questions of mixed law and facts, leave of the Court of Appeal or the Supreme Court must be obtained to make the appeal competent and invest the Supreme Court with jurisdiction to hear the appeal. See Section 213(3) (sic) Constitution 1979, Ojeme v. Momodu III (1983) 3 SC 173, Oke v. Eke (1982) 12 SC 228 and Akpasubi v. Unweni (1982) II SC 132.

From the foregoing deduction, it is obvious that the refusal of this Court to grant the appellants/applicants leave to argue the grounds of mixed law and fact as subscribed on the Notice of Appeal i.e. ground 4 will rob the appellants/applicants of the right to be heard on the said ground of their Notice of Appeal. See also Anachebe v. Ijeoma (2015) All FMLR (Pt. 784) 183 at 201.

The application at hand presupposes that the Notice of Appeal filed on the 17th day of August, 2016 and exhibited as Exhibit AU3 to the

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affidavit in support of the motion on Notice, contains a ground of mixed law and facts; as such, the leave of this Court is inevitable before the affected ground of appeal is to be properly before the Court. It is trite law and also reasonable in my view that, where it is not apparent on record or when a party is not sure whether a ground of appeal can be classified as a ground of law or a ground of mixed law and fact, leave of Court to appeal on such ground could be obtained as a safe or precautionary measure. See F.B.N. Plc. V. T.S.A. Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 at 292.

As rightly submitted by the learned counsel for the appellants/applicants, with his clients having appealed within time and having subscribed other valid grounds of appeal on the notice of appeal duly filed earlier within the time allowed by law, there is nothing before this Court to prevent the exercise of discretion in favour of their application. It will defeat the cause of justice to fetter the right of access to the Court by way of declining to grant an application of this nature. The principle had long been laid down that the path to tread should be that of justice as against technicality. Such application should not be opposed for

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the sake of either doing so or because the opponent feels threatened. The overriding consideration must always be justice and fairness. The principle has been well entrenched affirmatively by this Court in the following cases of: Obikoya v. Wema Bank Plc (1989) 1 NWLR (Pt. 96) 157 at 179 and Holman Brothers (Nig.) Ltd v. Kigo (Nig) Ltd (1980) 8-11 SC 43 at 62 and 63 where it was held that:

an application is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal.—-

—- Having regard to the grounds of appeal exhibited and the facts disclosed in the affidavit evidence, — the Court of Appeal was in error to refuse the application and prevent a hearing of the appeal.

As rightly submitted by the appellants/applicants counsel, the fact that the judgment had already been delivered by the lower Court in the case in which his clients are seeking leave to be joined as interested parties at the Court of Appeal, cannot hinder the exercise of their constitutional right to Appeal; this is especially when their appeal to this Court was properly, and timeously

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filed.

It is pertinent to recapitulate that the appellants/applicants were denied leave to appeal as a party interested by the lower Court; the poser question is, whether such persons can rightly exercise their constitutional right of appeal against the decision of the Court of Appeal refusing them leave to appeal It is elementary to say that the ruling of the lower Court refusing the appellants/applicants leave to appeal is a decision of the Court within the meaning of Section 318(1) of the Constitution 1999 which is therefore appealable. See In Re: Shyllon (1994) 6 NWLR (Pt. 353) 735 at 751-752; Rabiu v. State (1980) 8-11 SC (Reprint) 85; and Tomtec (Nig) Ltd. V. F.H.A. (2009) 18 NWLR (Pt. 1173) 358 at 375-376. The refusal of leave to appeal is, without more, a denial of right to fair hearing.

The present application is praying the Court to exercise its powers under Section 22 of the Act to grant the reliefs which the appellants/applicants sought before the Court below. The grounds predicating the application as well as the facts deposed to on the affidavit in support are very evident. The Exhibits AU1, AU2 and AU3 are also relevant being the

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final judgment of the Federal High Court, Abuja, Ruling of the Court of Appeal, Abuja dismissing the appellants/applicants application praying to be joined as interested parties and the notice of Appeal filed at the Court of Appeal registry on 17th August, 2016 and challenging the ruling of the lower Court delivered 5th August, 2016 all attached herein respectively.

The issue before the lower Court which is centered on the principle of fair hearing cannot be waived off as sought by the respondents. As rightly submitted on behalf of the appellants/applicants, it is of no moment that the lower Court had determined the substantive appeal before it. It is sacrosanct that the appellants/applicants constitutional right of appeal against the decision of the lower Court refusing them leave to appeal as interested party, remains extant and cannot be waived or taken away from them. The following authorities are supportive on the principle of fair hearing:- MFA v. Inongha (2014) 4 NWLR (pt. 1397) 343 at 375-376; 7-up Bottling Co. v. Abiola & Sons (Nig) Ltd (1995) 3 SCNJ 37 (1995) 3 NWLR (Pt. 383) 257; Deduwa v. Okorodudu (1976) 1 NMLR 236 at 246;

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Tsokwa Motors (Nig) Ltd v. U.B.A. Plc (2008) All FWLR (Pt. 403) 124 at 1255, (2008) 2 NWLR (Pt. 1071) 347. Also in the recent case of Abubakar Audu v. FRN (2014) 53 NSCQR 456 at 469, (2013) 5 NWLR (Pt. 1348) 397 at 401-411, this Court reiterated thus amongst others:-

.the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22—–”

In the substantive appeal per relief (ii), the appellants/applicants are praying this Court to invoke Section 22 of the Supreme Court Act. Therefore, the judgment of the lower Court in the substantive appeal has not affected appellants/applicants pending appeal before this Court. Again and as rightly submitted by the learned counsel for the applicants all the issues being raised by the respondents against this application can be determined appropriately in the substantive appeal and should not be looked into at the interlocutory stage at hand, which as stated earlier is

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prohibited, as it will amount to determining the merit of the substantive appeal that is yet to be heard. See again the case of Kotoye v. C.B.N (1989) NWLR (Pt. 98) 419 and Obeya M.S. Hospital v. A.G Federation (1987) 3 NWLR (Pt. 60) 325 at 340. In other words, the objection by the 3rd respondent is clearly an invitation to the Court to determine the substantive appeal at an interlocutory stage, which this Court will surely not do.

The appellants/applicants in my view, have placed before this Court all relevant materials necessary for the grant of this application. The application is seeking to render as competent ground 4 of the notice of appeal which appears to be a ground of mixed law and facts. The justice of the application would be achieved if the discretion of this Court is exercised in favour of the application thereof in the absence of any reason put before this Court that the granting of same will either prejudice the respondents or overreach them.

The appellants/applicants already have in place a valid and subsisting appeal which was properly and timeously filed at the Registry of the lower Court. In the result, I hereby grant the

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application as per the orders prayed:-

1. Leave is granted the appellants/applicants to appeal against the decision of the Court of Appeal Abuja Division delivered on the 5th day of August 2016 in Appeal No. CA/A/390/2016, Dr. Alex Otti & Anor vs. Dr. Sampson Uchechukwu Ogah & 4 Ors.: on grounds of mixed law and facts as set out in the Notice of Appeal already filed at the Court of Appeal, Abuja Registry, on the 17th day of August, 2016.
2. A further order is also made and deeming as properly filed and served the Notice of Appeal filed at the Court of Appeal, Abuja Registry, on the 17th day of August, 2016 the correct filing fees having been paid.
3. There shall be no order as to costs.

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SC.718/2016(R)