Effect of Notice of Withdrawal of Appeal Not Served on Respondent
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Sometime in March 2009, the Governor of Osun State appointed the Appellants as Chairman, Secretary and Member respectively, of the Osun State Independent Electoral Commission (OSSIEC). Their names were submitted to the Osun State House of Assembly (OSHA) – the Defendant/Respondent – for confirmation. The Appellants appeared before the Defendant/Respondent for screening and confirmation of their appointments, and submitted their curriculum vitae within a relatively short notice while only two of the Appellants submitted their credentials together with the curriculum vitae for screening and confirmation. The Claimant/ Respondent posited that without the submission of credentials by all the Appellants, the screening and confirmation should not hold, but the position was overruled by the majority and the Defendant/Respondent confirmed the appointments of the Appellants. The Governor then proceeded to swear them in accordingly.
Dissatisfied with the procedure adopted in confirming the Appellants, the Claimant/Respondent commenced an action by way of an Originating Summons against the 2nd Respondent at the High Court of Osun State in Suit No. HOS/ M41/2009. The trial Court delivered judgement granting the reliefs as claimed. Aggrieved by the decision, the Defendant/ Respondent appealed to the Court of Appeal and applied for stay of execution. Subsequently, the Defendant/Respondent filed a Notice of withdrawal of the appeal, and issued fresh invitations to the Appellants (already sworn-in members of OSSIEC) for screening and confirmation. By a majority vote of members of the Defendant/Respondent, the Appellants’ appointments were confirmed and the Governor swore them in the second time.
In view of the foregoing, the Claimant/Respondent contested the new position by filing another suit at the High Court of Osun State in Suit No. HOS/M.70/2010, where he challenged the validity of the Notice of Withdrawal of the Appeal. He argued that the Notice was technically incapable of terminating the appeal, because it was incompetent for want of service, and that the appeal and application for stay of execution were still valid and subsisting. In effect, he argued that the screening and re-confirmation were irregular, and constituted an abuse of court process. The trial Court agreed with the position of the Claimant/Respondent and granted the reliefs claimed by him. The trial court made a further Order dissolving the OSSIEC and directed the Appellants to vacate their offices.
The Appellants, who were not parties at the trial Court, sought the leave of Court to appeal as interested parties and thus, appealed the decision. However, the Court of Appeal resolved the issues in the appeal against them and dismissed the appeal. Hence, the Appellants further appealed to the Supreme Court.
Issues for Determination The Appellants formulated four issues for determination; however, only two of the said issues were considered by the Apex Court in the determination of the appeal. These issues are:
1. Whether the Court of Appeal was correct in upholding the decision of the trial Court that the Notice of withdrawal filed by the Appellants against the judgement of the High Court in Suit No. HOS/ M41/2009 was not served on the Claimant/Respondent.
2. Whether the Court of Appeal was right in upholding the decision of the trial Court 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.
Arguments On the 1st issue, Counsel for the Appellants contended that the issue of non-service of the Notice of withdrawal of the appeal in Suit No. HOS/M41/2009 was not canvassed or determined at the trial Court; hence, the decision of the Court of Appeal on same was in error, being outside the case before it.
The Respondents, on the other hand, submitted that the issue of whether the Notice of Withdrawal filed by the Appellants was not a valid withdrawal, was an issue raised, argued and settled by the trial Court and affirmed by the Court of Appeal.
On the second issue, the Appellants argued that, as at the time the Claimant/ Respondent filed Suit No. HOS/M41/2009, the due process for the appointment and confirmation of the Appellants under Section 198 and 199 of the Constitution of the Federal Republic of Nigeria, 1999 had been complied with; hence their right and interest in the matter had already accrued. The Appellants submitted that, in view of this and contrary to the decision of the Court of Appeal, they were necessary parties to the suit and the proceeding in the suit; their absence as parties, amounted to a denial of their right to fair hearing and the proceeding was therefore, a nullity.
Conversely, the Respondents argued that the due process for the appointment and confirmation of the Appellants under Section 198 and 199 of the Constitution had not been complied with and until that was done, the Appellants did not have any established right or interest in the matter.
Court’s Judgement and Rationale In determining the first issue, the Supreme Court agreed in principle with the Court of Appeal, that it is only where a notice of withdrawal has been filed and served on the Respondents, that the appeal will be deemed dismissed. The Apex Court however, held that the only remedy available to the Respondent complaining that a notice of withdrawal is ineffectual, is to file an appeal. The Court held further that the existence of a suit on appeal and the fact that the Claimant had earlier objected to the non-service of Notice of Withdrawal on him, shows that issues had been joined and the logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested one way or the other including whether or not the appeal was validly withdrawn. The objective of the notice of termination in the instant case, is to voluntarily put an end to a judicial process or terminate the objective for seeking judicial remedies. The Claimant/Respondent ought to have pursued the appeal and made the issue of non-service of the notice of withdrawal, a ground to seek reliefs to set aside the proceedings of 30th March, 2010 and 1st April, 2010 by the House of Assembly and the then Governor of Osun State, instead of filing a new suit. Relying on its decision in NTUKS v NPA (2007 13 NWLR (Pt. 1051) Page 392, the Court held that the only remedy open to the Respondent, was to apply by way of an interlocutory application in the appeal, for an order setting aside the purported Notice of Withdrawal and his resort to a fresh action in Suit No. HOS/M.70/2010 was a wrong procedure and an abuse of court process. Their Lordships stated that since the appeal had not been entered at the time of filing the Notice of Withdrawal, the filing of same at the trial Court clearly and effectively put an end to the appeal.
On the second issue, the Supreme Court relied on the right to fair hearing as provided in Section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999 and held that where the right of obligation of a person is in question and is to be determined by a Court or Tribunal, he is entitled to be heard, as it is an immutable principle of natural justice that no one is to be condemned unheard. The Apex Court held that Suit No. HOS/M.70/2010 was not just to challenge the internal proceedings of the Defendant/Respondent, but also to deprive the Appellants of their established rights as established members of OSSIEC. The suit was a protest suit by the Claimant/Respondent against the seeming improper withdrawal by the Appellants of the appeal against the decision of the Court in the earlier Suit No. HOS/M41/2009 and as at 30th March, 2010 the Appellants had been re-screened and re-confirmed and consequently sworn in. The Supreme Court opined that the 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 were directed at their rights and interests.
The Court also held that the effect of an Order not specifically claimed and made against persons not joined as a party is that such order is a nullity and of no effect. On this basis, the Supreme Court held that the further Orders of the Court of Appeal dissolving the OSSIEC and directing the Appellants to vacate their respective offices were null, void and of no effect. Appeal Allowed. Representation: S. K. Olowolagba for the Appellants.
A.A. Afolabi with T. Adegboyega, K. Alimi for the 1st and 2nd Respondents. Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))
"IN DETERMINING THE FIRST ISSUE, THE SUPREME COURT AGREED IN PRINCIPLE WITH THE COURT OF APPEAL, THAT IT IS ONLY WHERE A NOTICE OF WITHDRAWAL HAS BEEN FILED AND SERVED ON THE RESPONDENTS, THAT THE APPEAL WILL BE DEEMED DISMISSED. THE APEX COURT HOWEVER, HELD THAT THE ONLY REMEDY AVAILABLE TO THE RESPONDENT COMPLAINING THAT A NOTICE OF WITHDRAWAL IS INEFFECTUAL, IS TO FILE AN APPEAL"