HOW TO DISCONTINUE AN APPEAL WHICH HAS BEEN FILED BUT HAS NOT BEEN ENTERED: A REVIEW OF OYEYEMI & 5 ORS V. OWOEYE & ANOR[1]

1.0. INTRODUCTION/BRIEF STATEMENT OF FACTS

The case of Oyeyemi & 5 Others v. Owoeye & Anor arose as an appeal from the Court of Appeal, Akure Division. The facts of the case are straight-forward. The Appellants were appointed by the Governor of Osun State (the Governor) as Chairman, Secretary and members respectively of the Osun State Independent Electoral Commission (OSSIEC). The Osun State House of Assembly (the Defendants/Respondents (the OSHA)) by virtue of its constitutional powers screened the Appellants on the 24th of March, 2009 for possible confirmation. While two of the Appellants supplied their credentials alongside their curriculum vitae, others did not. The Claimant/Respondent as a member of the OSHA raised objection on this basis; his position was over-ruled and the Defendant/Respondent subsequently confirmed the appointment of the Appellants who were sworn into their offices on the 3rd of April, 2009 by the Governor. The Claimant/Respondent and some members of the Action Congress in the OSHA being dissatisfied with the process followed in confirming the Appellants, commenced an action by way of an Originating Summons at the High Court of Osun State, Oshogbo in suit No: HOS/M41/2009. Judgement was in favour of the Claimants. The Defendant/Respondent being aggrieved with the decision of the trial court coram S.O. Falola J appealed to the Court of Appeal, Akure Division while also applying for a Stay of Execution of the judgement of the trial court. However, the Defendant/Respondent filed a Notice of Withdrawal of Appeal at the trial court and subsequently issued fresh invitations to the Chairman, Secretary and members of the OSSIEC for fresh scrnng and confirmation. On the 30th of March, 2010, they were confirmed and sworn in on the 1st of April, 2010. The Claimant/Respondent being aggrieved filed a suit no: HOS/M.70/2010 claiming that the Notice of Withdrawal of the appeal filed at the Osun State High Court, Osogbo in respect of HOS/M41/2009 could not terminate the suit for want of service. The High Court agreed with him and accordingly invalidated the said Notice of withdrawal and granted all reliefs claimed by the Claimant/Respondent including a supposed consequential relief dissolving the OSSIEC and directing the Appellants to vacate their respective offices. The Appellant being aggrieved sought and obtained the leave of the Court of Appeal to appeal the said judgement as interested parties ostensibly under Section 243(a) of the 1999 Constitution (as amended). The Court of Appeal dismissed the appeal thus necessitating this further appeal. In resolving the appeal in favour of the Appellants, the Supreme Court had to answer inter alia the question: “Whether the learned Justices of the Court of Appeal were correct in upholding the decision of the trial court that the notice of withdrawal filed by the Appellants against the judgement of the High Court in suit No. HOS/M41/2009 was not served on the Claimant/Respondent”

2.0. HOLDING

The Supreme Court per Bage JSC who read the Lead Judgement of the Court with which all Justices of that court concurred with in respect to its implications,[2] observed at page 144 of the report that: “Since appeal had not been entered at the Court of Appeal at the time of filing the Notice of Withdrawal, the filing of same at the lower court clearly and effectively puts an end to the appeal. The decisions in Ezomo v. Attorney General Bendel State (1986) 7 SC (Pt II) (Reprint) 186 and Governing Council of ITF v. Chijioke (1998) 3 NWLR (Pt. 540) 170 CA are applicable and are hereby applied.”

His brothers namely Peter-Odili and Eko JJSC seemed to have disagreed with him. The former observed quite pointedly at page 157 that: “The application for stay of execution of the judgement in HOS/M41/2009 was pending before the court when the Defendant/Respondent to show intention to withdraw the appeal merely filed a notice of withdrawal dated 29th March, 2010. The notice of withdrawal filed at the registry of the lower court disclosed no address for service and indeed was never served on the Claimant/Respondent in violation of Order 11 Rule 1 of Court of Appeal Rules, 2007.” The latter at page 177–179 stated inter alia that: “The first defect in the notice to withdraw is that there was no address on the said notice of the Respondent in hat appeal. This defect is fundamental. Order 2 Rule 3 of the Court of Appeal Rules, 2007, provides, without ambiguity: ‘Where under these Rules, any notice or other process is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such address has been endorsed on it.’ The instant notice of withdrawal of the subsisting appeal had no address endorsed on it for service on the Respondent in the appeal. The notice is therefore incompetent, as submitted by the 1st Respondent. Order II Rules 1, 2, 4 & 5 of the 2007 Rules of the Court of Appeal have the following active components/requirements necessary to effectuate a valid notice to withdraw appeal, vis: (1) The Notice must be filed before the appeal is called on for hearing. (Not relevant for this appeal) (2) The Notice shall be filed with the Registrar of the Court of Appeal (‘Registrar’ defined by Order 1 Rule 5 is the Registrar of the Court of Appeal, and not the registrar of the High Court or the court from where the appeal emanates.)[3] (3) The notice shall/must be served on all parties, particularly the Respondent in the appeal. The service of the notice of withdrawal on the Respondent in the appeal, being imperative, the address for service on the Respondent of the notice of withdrawal of appeal shall/must be on the notice, failing which the notice of withdrawal of appeal is incompetent and a non-starter by dint of Order 2 Rule 3 of the Court of Appeal Rules.[4] The court below, on this issue of the notice of withdrawal being incompetent, was right in holding that: ‘It is only where a notice of withdrawal has been filed and served on the Respondent that the appeal in question is deemed automatically, dismissed.’ The court below is quite right on this. An appeal which has been withdrawn under Order 11 of the Court of Appeal Rules, 2007, whether with or without an order of the Court of Appeal, shall be deemed to have been dismissed. The only remedy available to the Respondent complaining that the notice of withdrawal is ineffectual ordinarily should have been by a way of appeal. This is because a valid notice of withdrawal of appeal, filed in the Registry of the Court of Appeal, effectively puts an end to the appeal, and the appeal, in law, is deemed to have been dismissed. In the instant appeal, the purported notice o withdrawal of the appeal, which has no address for service on the Respondent, appeal, by virtue of Order 2 Rule 3 of the Court of Appeal Rules, 2007, is deemed not ‘have been properly filed’. Therefore, in the eye of law it does not exist and cannot draw or, attract to itself the consequential effect, of the appeal statutorily deemed to have been dismissed, as contained in Order 11, Rule 5. In our jurisprudence, a party who is aware that an order is null or invalid should apply to have it set aside. See: Rossek v. ACB (1993) 10 SCNJ 20 at 39–40. In the instant case, the only remedy open to the 1st Respondent was to apply, by way of an interlocutory application in the appeal, for an Order setting aside the purported notice of withdrawal. His resort to a fresh suit (no. 10S/M70/2010) in the matter of the wrong procedure to terminate the appeal against the decision in the previous suit No. HOS/M41/2009 is an abuse of court’s process. Consequently, the subsequent suit No. HOS/M.70/2010 was in abuse of court’s process. The suit ought to be and is hereby dismissed.”

3.0. REVIEW

The foregoing would have shown that there are at least two perspectives here. On the one hand is the view held by the lead opinion that the Notice of Withdrawal was valid in law since the appeal had not been entered. On the other hand, however, is the view of the otherwise concurring judgements of Peter-Odili and Eko JJSC that the Notice of Withdrawal was not valid in law. So, which view is the law.

It should be noted that the Noble Lord, Bage JSC made his finding after having found that the later suit No. HOS/M70/2010 was an abuse of court process; thus making the latter finding an obiter dictum. At page 142, My Lord, Bage JSC observed that: “The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the latter manifestly an unpardonable abuse of court process.” On the effect of a process held to be an abuse of the process of the court, see Chief Victor Umeh & Anor v. Professor Maurice Iwu[5] referred to with approval by Bage JSC at page 143–144 of the case under review: ‘It is settled law that generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. See Ogoejeofo v. Ogoejeofo (2006) 1 SC (Pt. 1) 157 and Okafor v. Attorney General of Anambra State (2005) 6 SC (Pt. 1) 1. The bottom line of these authorities in regard to abuse of process is that, to institute an action during the pendency of another suit claiming the same relief is an abuse of court process and the only course pen to the court is to put an end to the suit.’ See also A.G. Anambra State v. Uba,[6] per Bulkachuwa JCA (as she was then now PCA) who observed that: ‘An abuse of the court process has been defined in CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369 at 409 per Ogundare JSC (of blessed memory) quoting Karibi-Whyte JSC in Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188–190 as:- The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party to litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okoromadu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than in the exercise of the right per se. the abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6.’

Both Peter-Odili and Eko JJSC based their respective decisions primarily on the fact that the latter suit was an abuse of court of process; this further underscores the fact that the holding of Bage JSC on the effect of a notice of withdrawal of an appeal filed at the trial court when the appeal has not been entered is an obiter dictum. Peter-Odili JJSC observed for instance at page 162 of the report that: “It falls to reason that the matter of whether or not the notice of withdrawal was considered does not arise as the records bear that out clearly. The result is that a valid subsisting decision of the trial court. Affirmed by the court below that there was no service of the notice of withdrawal of the appeal and so in effect stamped the fact of the appeal being alive and well, it should have been raised in the earlier suit by way of an appeal.[7]”

The latter finding that filing a notice of discontinuance of appeal at the trial court before the appeal was entered at the Court of Appeal was competent to discontinue the appeal may thus be viewed as an obiter dictum which though persuasive is not compelling. Thus, in NDIC v. Okem Enterprise Ltd & Anor,[8] Ejiwunmi JSC opined that: “It is undoubtedly settled law, that an appeal is usually against a ratio and not against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the ratio. But even there, the appeal is against the ratio.” In Compact Disc Technologies v. MCSN (2010) LPELR-4006(CA) at 42, Saulawa JCA explaining the effect of an obiter dictum observed that: “Instructively, the term ‘obiter dictum’ (plural obiter dicta) is a latin derivative, which denotes ‘something said in passing’. It is a judicial comment usually made in the course of delivering a judicial decision or opinion, but one that appears to be neither necessary, nor even expedient to the decision in the case at hand. Thus, an obiter dictum is said to be unprecedential (not binding) although it may be considered persuasive. It is very often shortened to ‘dictum’ or less commonly ‘obiter’. See Black’s Law Dictionary, Eighth Edition 2004 at page 1102 thus: ‘Strictly speaking an obiter dictum is a remark made or opinion expressed by a judge, in his decision upon, a cause, by the way — that is, incidentally or collaterally, any statement of law enunciated by the judge or Court merely by way of illustration, argument, analogy, or suggestion…. In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta’ or ‘obiter dicta’. These two terms being used interchangeably.’”

It is thus not the law that once before an appeal has been entered at the Court of Appeal, the appeal can be discontinued by merely filing a notice of discontinuance at the trial court.

The step-by-step procedure laid down by Eko JSC and which has already been quoted above constitute the steps any Appellant who intends to discontinue an appeal that has not been entered must comply with.

It may be argued that where a case is heard by a multiplicity of judges, the majority view is the judgement of the court and thus since Onnoghen Acting CJN (as he was then) and Akaahs JSC concurred with Bage JSC without equivocation, the view of Bage JSC being that of the majority is the law. If this passionate and otherwise compelling argument is made, an appropriate response would be that the majority view on this point was made obiter and cannot constitute precedent.

4.0. CONCLUSION

Courts loath abuse of its processes and will dismiss a suit or process that constitutes an abuse of its processes.

A lead and/or majority opinion which does not constitute the ratio of the court does not constitute a precedent that can bind a latter court. That having been said, the step-by-step procedure enumerated by Eko JSC on discontinuing an appeal which has not been entered is to be preferred to that of Bage JSC that merely filing the notice of discontinuance at the trial court was sufficient.

[1] Oluwakemi S. Adeyemi Esq. is a legal practitioner based in Lagos with research interest that covers litigation, pension and insurance law, the interface between law and the economy of nations especially Africa and may be reached via aolulaw17@gmail.com. Some of his other writings may be found via www.medium.com/@aolulaw17. He interfaces on Twitter via twitter.com/@aoluwakemi17.

[2] See this writer yet to be published article titled HOW TO DISSENT: A RVIEW OF NIKI TOBI JSC’S DISSENTING OPINION IN AKANINWO V. NSIRIM (2008) 1 SC (PT. III) 15 via https://drive.google.com/file/d/1afSw2kyzHVwmU5pJCJF1tOGSMDeDywzW/view?usp=sharing on the possibility of agreeing with conclusions while dissenting on the basis of reasoning and/or premises and on the different types of judgements that can be found in an appellate holding namely; lead, concurring, dissenting, concurring but later dissenting judgements, etc.

[3] Emphasis are those of the writer.

[4] Emphasis are those of the writer.

[5] (2008) 2–3 SC (Pt. I) 135

[6] (2005) 15 NWLR (Pt. 947) 44 at 68

[7] Emphasis supplied. See also Eko JSC at page 179

[8] (2004) LPELR-1999(SC) at 105