The Court of Appeal in Abuja has dismissed an appeal filed by former Senate President David Mark over the ongoing African Democratic Congress (ADC) leadership dispute.
In a unanimous judgment delivered on Thursday, a three-member panel of the Court comprising Uchechukwu Onyemenam, Mohammed Mustapha, and Okon Efreti Abang struck out the appeal for being incompetent after upholding a preliminary objection challenging the court’s jurisdiction.
RELATED STORIES
The court held that what a judge says in open court prevails over any conflicting enrolled court order subsequently drawn up in chambers.
The respondents in the case included Nafiu Bala Gombe, the African Democratic Congress (ADC), Rauf Aregbesola, Ralph Nwosu, and the Independent National Electoral Commission (INEC).
The appeal stemmed from proceedings before the Federal High Court in Abuja presided over by Emeka Nwite.
At the trial court, an ex parte application had been filed seeking interim injunctive relief relating to the leadership structure within the ADC.
Rather than grant or refuse the application outright, Justice Nwite directed that the affected parties be put on notice to show cause why the relief sought should not be granted.
That procedural direction later became the unlikely focal point of the appeal.
Delivering the lead judgment, Justice Onyemenam held that the appeal was fundamentally flawed.
The preliminary objection filed by the first respondent argued that the appeal was based on matters the trial court had not determined and that the appellant had failed to obtain leave of court before filing the appeal. The Court of Appeal agreed.
Justice Onyemenam noted that the trial court’s decision was merely procedural and did not constitute a determination of rights.
According to the judge, the order directing parties to show cause was therefore not a final decision capable of sustaining an appeal.
The appellate court also confronted a central misconception that underpinned the appeal.
The appellant had relied heavily on an enrolled order prepared by the court registry, which appeared to suggest that the trial court had refused the ex parte application.
But the official record of proceedings told a different story, according to the Appeal Court.
The judge observed that Justice Nwite had neither granted nor refused the application; he simply directed that the parties be heard.
The Court of Appeal stressed that in such circumstances the law is settled: “the ruling delivered in open court remains the authoritative record of the court’s decision.”
“A decision made in open court takes precedence over the enrolled order of the court,” Justice Onyemenam held, adding that where a conflict arises between the two, the ruling pronounced in open court must prevail.
The court therefore concluded that the appellant had effectively constructed grounds of appeal around a document that did not accurately reflect the decision of the trial court.
The appeal also faltered on another procedural ground. The court held that the appellant had not obtained leave from either the trial court or the Court of Appeal before filing the appeal.
Having upheld the preliminary objection, the court ruled that the appeal was “incompetent and accordingly struck it out.”
Justice Mustapha, in a concurring opinion, agreed entirely with the reasoning and conclusion of the lead judgment.
Justice Abang used his contribution to dismantle the procedural foundations of the appeal while fully aligning with the reasoning of the lead judgment.
Justice Abang pointed out that the appellant was not even a party to the proceedings in which the trial court made the ruling now being challenged.
Under the Constitution, he stressed, only a party to proceedings enjoys a right of appeal as of course.
He added that any other person claiming to be affected must first obtain leave of court before approaching the appellate court.
“The appellant was not a party and cannot appeal as of right except with leave of court,” he held, adding that the right of appeal is neither automatic nor elastic but strictly grounded in constitutional and statutory provisions.
Justice Abang observed that “right of appeal is not conferred on a party based on imagination of counsel.”
He also emphasised that the Court of Appeal must be guided by the proceedings of the trial court (the contemporaneous record of what transpired before the judge) rather than by an enrolled order subsequently drawn up in chambers.
Where the two diverge, the proceedings remain the definitive account, he maintained.
Having dismissed the appeal, the Court of Appeal affirmed the procedural approach adopted by the Federal High Court but issued preservatory directions to ensure that the pending proceedings are not undermined.
The appellate court ordered that the matter before Justice Nwite be heard on an accelerated basis in view of the timetable set by the Independent National Electoral Commission.
It also directed the parties to maintain the status quo ante bellum and refrain from taking steps capable of rendering the case nugatory.
Costs of N2 million were awarded in favour of the respondents.
