DAVID SABO KENTE
1. DARIUS DICKSON ISHAKU
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
Following the Governorship Primary Elections of the Peoples Democratic Party (PDP) conducted on 11th December, 2014, the Appellant herein filed a suit against the Respondents at the Federal High Court, Taraba Judicial Division sitting in Jalingo. Vide an Originating Summons filed on the 1st April, 2015, the Appellant herein sought for the determination of one lone question as follows:
Whether the 2nd defendant for the purpose of selecting candidate for Governorship primary for Taraba State for the 2015 general elections can adopt a procedure other than that stipulated in the Electoral Act, 2010 (as amended), the 2nd defendants Constitution 2012 and the Electoral guidelines for primary elections 2014.
Thereafter, he sought the following reliefs from the lower Court:
1. A DECLARATION that the 2nd defendant cannot adopt a procedure for its primary election for Taraba State Governorship candidate for the 2015 General elections other than that provided under section 87(4) of the Electoral Act 2010 (as amended), the 2nd defendants Constitution 2012 and its Electoral Guidelines for primary election.
2. A DECLARATION that the 2nd defendant having not complied with the provisions of section 87(4) of the Electoral Act 2010 (as amended), section 50 of the 2nd defendants Constitution 2012 and the provisions of its partys guidelines for Governorship primary election 2014 has not validly conducted primary election for the purpose of nominating a candidate for Governorship election for the 2015 general election in Taraba State.
3. AN ORDER nullifying the purported primary election conducted by the 2nd defendant on the 11th December, 2014 for the purpose of selecting its candidate for the 2015 Governorship election in Taraba State.
4. AN ORDER restraining the 3rd defendant from accepting and/or recognizing or dealing in any manner with the name of the 1st defendant as the candidate of the 2nd defendant for the 2015 Governorship election in Taraba State.
5. A DECLARATION that the 2nd defendant having not conducted a Governorship primary election in Taraba State in accordance with the Electoral Act 2010 (as amended), the 2nd defendant guidelines for primary election 2014 and its own Constitution 2012 has no candidate for the 2015 Governorship election in Taraba State.
6. AND FOR SUCH FURTHER ORDER(S) as the Honorable Court may deem fit to make in the circumstances of this suit.
In support thereof was an 11 paragraph affidavit deposed to by the Plaintiff himself. Following the service of the Originating Summons, the 1st and 2nd Respondents entered conditional appearances and thereafter filed two separate Notices of preliminary objection dated 23rd April, 2015 and 28th April, 2015 respectively, wherein they urged the lower Court to either dismiss or strike out the suit for being grossly incompetent or null and void. In response thereto, the Appellant filed a counter affidavit dated 18th May, 2015. As for the 3rd Respondent (INEC), it neither entered an appearance in the suit nor did it file any court process in response to either the Originating Summons or the preliminary objections raised.
Upon hearing arguments advanced by the parties on the preliminary objections, the lower Court issued two Rulings thereon on the same day, i.e. 17th September, 2015, wherein it dismissed the suit. Piqued and peeved by the Ruling, (contained at pages 246 to 292 of the printed Record of Appeal), the Appellant filed an Appeal against it dated 20th October, 2015, on the 21st October, 2015 vide a Notice of Appeal (at pages 294-303 of the Record).
The pith of the facts leading to this Appeal from the Appellants perspective is that he, the Appellant, was a member of the Peoples Democratic Party, (hereinafter referred to as PDP, 2nd Respondent herein), duly registered at Kente Ward in Wukari Local Government Area of Taraba State. He expressed his ambition to participate in the Primary Election of the PDP which was held for the purpose of nominating its candidate for the 2015 Governorship election in Taraba State. He filled and submitted the requisite forms, i.e. the Expression of Interest form and the Nomination form, and paid the administrative charges thereto. Thereafter, he submitted himself for the screening exercise before the screening committee set up by the PDP. The Committee assessed and cleared him to participate in the Governorship Primary Election of the PDP to elect its candidate for the 2015 Governorship Election in Taraba State.
Subsequently, the PDP, in line with the provisions of the Electoral Act, 2010 (as amended) and the Constitution and Guidelines of the PDP, organized congresses to elect delegates for the purpose of the Primary Election, after which the Appeal Panel of the PDP heard and dismissed various objections/protests of members who felt aggrieved with the results of the congresses. However, without any further announcement or publication, the PDP fixed the Primary Election for 11th December, 2014, scheduled Abuja to be the venue of the election, and excluded the elected delegates from participation in the election. Nevertheless, the Appellant, having received information on this, proceeded to Abuja and participated as an aspirant in the Governorship Primary Election. However, subsequently aggrieved by the conduct of the Primary Election, the Appellant filed the suit which is now the subject of this Appeal.
The 1st and 2nd Respondents did not join issues on the Plaintiffs claim in the Originating Summons, having failed to file any counter affidavits contesting the facts in the Appellants affidavit. Instead, they filed two separate Notices of Preliminary Objection challenging the locus standi of the Appellant to institute the action itself, the cause of action, the competence of the originating process and the jurisdiction of the lower Court to hear and determine the suit. To buttress these objections, the Respondents in their respective affidavits deposed that the Appellant had formally withdrawn from the membership of the 2nd Respondent, PDP, did not participate in the PDP Primary Election, jumped ship to another Party, i.e. the Social Democratic Party (SDP), and subsequently was a candidate representing the SDP in the 2015 Governorship Election in Taraba State. After hearing arguments from the parties on the objections, the lower Court ruled sustaining the preliminary objections, and consequently struck out the suit of the Appellant.
From the perspective of the 1st and 2nd Respondents, the facts germane to this Appeal are that, after the Appellant filed his Originating Summons seeking the determination of the sole issue and the reliefs (as reproduced earlier in the body of this Judgment), the 2nd Respondent filed a Notice of Preliminary Objection to the hearing of the suit, contending that the Appellant had no interest in the matter because he had left the 2nd Respondent (PDP) and joined the SDP, on whose platform he subsequently contested the Governorship Election of Taraba State. It was also contended that the Appellant did not participate in the Primary Election of the PDP (2nd Respondent) which he complained about in the Originating Summons. The 1st Respondent on his own part also filed a Notice of Preliminary Objection to the hearing of the suit. While reiterating the points canvassed by the 2nd Respondent, the 1st Respondent in addition, contended that the Appellant did not seek and obtain the leave of the lower Court to serve the Originating Summons outside jurisdiction, and also that the Originating Summons did not bear an endorsement for service outside jurisdiction. In response to these objections and the affidavits filed in support thereof, the Appellant filed a counter affidavit where he failed to counter the deposition that he was the flag bearer of the Social Democratic Party (SDP) at the Governorship Election.
As for the 3rd Respondent, (INEC), her statement of the facts leading to the Appeal is a combination of the facts as stated by both the Appellant and the 1st and 2nd Respondents. I therefore see no need to reproduce it again here.
At the hearing of the Appeal on 23rd May, 2016, learned Counsel for the 1st and 2nd Respondents, E.A. Ibrahim Effiong Esq., led by A.J. Akanmode Esq., and M.I. Siman Esq., and appearing with A.B. Ahmad Esq., argued their Notice of Preliminary Objection to the hearing of the Appeal filed on 09-02-16. He formulated three issues for determination by the Court from the five grounds of objection set out therein. The arguments thereon are contained at pages 6-18 of the 1st and 2nd Respondents Amended Brief of argument, which he adopted in urging the Court to dismiss the Appeal on Ground (v) of the Notice of objection. In the alternative, Counsel prayed the Court to strike out the Appeal based on Grounds (i) (iv) of the objection. On his part, J. Olabode Makinde, Esq., learned Counsel for the 3rd Respondent (INEC), stated that he was not opposed to the objection raised to the hearing of the Appeal by the 1st and 2nd Respondent.
However, Abbas Ajiya Esq., learned Counsel for the Appellant vehemently opposed the 1st and 2nd Respondents Preliminary Objection and incorporated the Appellants arguments in this vein at pages 1-2 of the Appellants Reply Brief of argument. He adopted the arguments contained therein as his response to the objection, and urged the Court to dismiss same as lacking in merit, and to proceed to hear the Appeal.
Thereafter, learned Counsel for the 3rd Respondent (INEC), J. Olabode Makinde Esq., who had similarly filed a Notice of Preliminary Objection challenging the competency of the Appeal on 10-03-2016, adopted the arguments in support thereof contained at pages 6-10 of the 3rd Respondents Brief of argument deemed filed on 23-02-2016, and urged the Court to strike out the Appeal for the reasons canvassed therein. Ibrahim Effiong Esq., on behalf of the 1st and 2nd Respondents, associated himself with the arguments canvassed by the 3rd Respondent. On his part, Abbas Ajiya, Esq., stated that he did not file a Reply Brief in answer to the 3rd Respondents objection because the objection is no different from that of the 1st and 2nd Respondents. Consequently, he adopted the Appellants Reply to the 1st and 2nd Respondents objection as also his response to the 3rd Respondents objection. He again urged the Court to discountenance the objection and proceed to hear the Appeal. Rulings on the two sets of preliminary objections were therefore reserved to be delivered along with the Judgment in the substantive Appeal.
In respect of the substantive Appeal, Mr. Ajiya, learned Counsel for the Appellant, submitted that the Appeal is against the Ruling of the Federal High Court sitting in Jalingo delivered on 17-05-2015, which Ruling is contained at pages 246 to 258 of the printed Record of proceedings. As there were two Rulings delivered by the Court on the same date, he clarified that there is no Appeal against the second Ruling contained at pages 259-292 of the Record. The Notice of Appeal filed on 22-10-2015 wherein the Appellant complained on nine (9) grounds, is at pages 294 to 303 of the Record. The Appellant adopted and relied on the arguments in the Appellants Brief of argument filed on 23-12-2015 in urging the Court to allow the Appeal. From the nine grounds of appeal, Counsel distilled four issues for determination, which issues were duly tied to the grounds of appeal. Upon being served with the 1st and 2nd Respondents Brief of argument, the Appellant filed a Reply Brief on 09-03-2016. Learned Counsel adopted the arguments contained at pages 2 to 6 thereof as the Appellants arguments in response to the arguments of the 1st and 2nd Respondents on the Appeal. Once again, he urged the Court to allow the Appeal.
In opposing the Appeal, Mr. Ibrahim Effiong adopted and relied on the arguments canvassed in the 1st and 2nd Respondents Amended Brief of argument deemed duly filed on 23-05-2016, particularly at pages 18 to 27 thereof, in urging the Court to disallow the Appeal and dismiss same. Counsel filed an additional list of authorities on 23-05-2016.
On his part, Mr. Makinde, in the 3rd Respondents Brief of argument deemed filed on 23-03-2016, adopted issues 1 and 2 distilled by the Appellant from grounds 1 to 4 of the grounds of appeal. He however stated that the 3rd Respondent did not respond to the two other issues distilled from the other grounds of appeal. He adopted his arguments at pages 11-15 of the said Brief in urging the Court to dismiss the Appeal.
At the close of arguments of Counsel, the Court raised two issues suo motu and invited all Counsel involved in the Appeal to address it thereon. The issues were:
1. What does service outside jurisdiction mean within the confines of the Federal High Court (Civil Procedure) Rules, 2009?
2. What court process before the trial Court determines locus standi?
In answer to the first question, Mr. Ajiya, learned Counsel for the Appellant, submits that service outside jurisdiction is out of the territorial jurisdiction of the Federal High Court sitting in Jalingo, which jurisdiction comprises Taraba State. He submits that whereas Section 19 of the Federal High Court Act, 2004 provides that service outside jurisdiction is outside Nigeria; the Federal High Court (Civil Procedure) Rules, 2009 provides that service outside jurisdiction is service outside Taraba State. In respect of the second question, Mr. Ajiya, submits that it is the Plaintiffs Statement of Claim that should be examined in order to determine whether there are facts to donate locus standi.
In his response to the first question, Mr. Ibrahim Effiong, learned Counsel for the 1st and 2nd Respondents submits that, while being aware of Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, the Supreme Court decision in MV Arabella V NAIC (supra) cited in paragraph 6.5 of the 1st and 2nd Respondents Brief of argument, still subsists because it interpreted Section 97 of the Sheriffs and Civil Process Act, Cap S6 Laws of the Federation of Nigeria, 2004. On the second issue, Counsel submits that it is the originating process of the Plaintiff that determines whether a Plaintiff has locus standi to present his claim. He contends that in the instant case, the lower Court acted accordingly and found no facts donating locus standi.
In his submission, Mr. Makinde, learned Counsel for the3rd Respondent, was of the view that we can only be well-guided by the current Rules of Court on the issue. He however submits that the provisions of the Sheriffs and Civil Process Act take precedence over the Rules of Court. On the issue of locus standi, Counsel agreed that it is the Plaintiffs originating process that should be examined in order to determine locus standi.
It is settled law that a preliminary objection is a special procedure whereby a respondent may contend the competence of the Appeal, and if upheld, will result in the striking out of the Appeal. It seeks to provide an initial objection before the actual commencement of the thing being objected to. The fundamental object of a preliminary objection therefore is essentially to contend that the Appeal is incompetent and fundamentally defective, and thus should be discountenanced by the Court. It is meant to consider the issue of jurisdiction or competence of the court to entertain the suit. This explains the rationale of according priority to the disposal of the objection before delving into the determination of the Appeal on the merits. This is so because, once the objection is sustained, the appeal becomes liable to be aborted. Thus, the purpose of a preliminary objection, if successful, is to terminate the hearing of the appeal in limine either partially or in toto. It seeks to determine a bad process in limine upon grounds of law, and thereby saves all parties involved from engaging in a futile exercise. This purpose will be defeated if the objection is not taken timely as a preliminary issue. See SPDC Nig Ltd V Agbara (2015) LPELR-SC.693/2013; Iwuji V Gov. Imo State (2014) LPELR-CA/PH/202M/2005; Akpan V Bob (2010) LPELR-SC.135/2009; Hassan V Aliyu (2010) LPELR-SC.170/2009; Suleiman V Zakari (2009) LPELR-CA/J/EP/HR/322/07; Fabunmi V Ajayi (2008) 37 WRN 81 at 93; (2007) ALL FWLR (Pt. 358) 1067 at 1094; Abia V CRSPI Ltd (2007) 28 WRN 150 at 164; NEPA V Ango (2001) 5 NWLR (Pt. 137) 627; Manson V HES (Nig) Ltd Ndigwe V Nwude (1999) 11 NWLR (Pt. 626) 314 at 331.
Therefore, in the light of the two sets of preliminary objections raised to the hearing of the Appeal, it is incumbent on this Court to first attend to them before looking into the substantive Appeal, and to decide whether or not there is a competent Appeal to be determined by this Court in the first place. For purposes of expedience and convenience, I hereby consolidate the two Notices of preliminary objection filed by the 1st and 2nd Respondents on the one hand, and that filed by the 3rd Respondent on the other, to be determined together in this Ruling.
RULING ON PRELIMINARY OBJECTIONS
The 1st and 2nd Respondents Notice of preliminary objection to the hearing of the Appeal was filed on 09-02-16. The objection is anchored on five grounds which are as follows:
(i) Ground one of the Appeal is completely alien in that it is not borne out of the printed Record and therefore issue one is distilled from competent and incompetent grounds, and therefore is incompetent.
(ii) Issue two is said to be distilled from Grounds 3 and 4 when in fact Ground 3 is extraneous from the Record, thus incompetent.
(iii) Issue three, said to be distilled from Ground five of the Appeal indeed has no correlation whatsoever with the said Ground, thus rendering the issue incompetent.
(iv) Issue four, said to be formulated from Grounds 6 and 7 is indeed a total stranger to the said Grounds, thus rendering the issue incompetent.
(v) The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the Appellant, the fortune of the Appeal would not change in the face of some salient findings against the Appellant not appealed against at all, thus rendering the Appeal grossly incompetent.
From these grounds, the 1st and 2nd Respondents crafted the following three issues for determination:
1. Whether in the face of the Grounds of Appeal, with particular reference to 1 and 3, and issues 1 and 2 formulated therefrom, jointly with grounds 2 and 4, the said issues are not rendered incompetent. (Grounds 1 and 2 of the objection)
2. Taking into cognizance the fact that issues for determination 3 and 4 have no correlation with the Grounds they are said to be distilled from, whether the said issues are not rendered incompetent (Grounds 3 and 4 of the objection)
3. Whether in the face of damaging specific findings of the Court below against the Appellant which this Appeal is unrelated, especially to the effect thus:
i. that the Appellant failed to disclose the requisite locus standi and cause of action with particular reference to the Preliminary objection of the 1st Respondent, thus rendering the suit incomplete (pages 288-290);
ii. that the suit of the Appellant before the lower Court was non justiciable and thus incapable of being resolved through judicial process (page 209 lines 13-28); and
iii. that the suit of the Appellant is statute-barred (pages 291-292); this Appeal is not rendered academic (Ground 5 of the objection).
The 3rd Respondent, (INEC), on her part, anchored her preliminary objection on the following four grounds:
1. The Appellants Notice of Appeal in Appeal No. CA/YL/106/2015 is incompetent and cannot be entertained by the honourable Court of Appeal.
2. There is no valid Appeal before the Court of Appeal.
In the alternative,
3. Issues 3 and 4 raised by the Appellant are not distillable from Grounds 5, 6 and 7 of the Grounds of Appeal.
4. Grounds 5, 6 and 7 are deemed abandoned thereby rendering the Appellants Appeal unsustainable.
Counsel for the 3rd Respondent did not however distill any issue for determination from these grounds. In addition, aside from the objection raised to grounds 5, 6 and 7 of the Grounds of Appeal, she did not raise any objection to grounds 1 to 4 of the Grounds of Appeal, and so no arguments were canvassed thereon.
From the two sets of grounds of objection, it is evident that, apart from grounds 1 and 2 of the 3rd Respondents grounds, all the other grounds of objection center on the competence or otherwise of the grounds of appeal vis-à-vis the issues distilled for determination by the Appellant. Since grounds 1 and 2 of the 3rd Respondents preliminary objection relates to the competence or otherwise of the Notice of Appeal itself filed on 22-10-2015, it shall be addressed first.
The grounds in support of the 3rd Respondents preliminary objection were mainly two, and they are as follows:
1. The Appellants notice of appeal in this appeal no. CA/YL/106/2015 is incompetent and cannot be entertained by the honourable court of appeal.
2. There is no valid Appeal before the court of appeal.
Grounds 3 and 4 of the objection are alternative grounds of objection in the event that Grounds 1 and 2 do not succeed and the Appeal is found to be competent. Learned Counsel for the 3rd Respondent submits that, from the Notice of Appeal filed by the Appellant dated 21st October, 2015 and filed on 22nd October, 2015 (at pages 294-303 of the Record), the decision which the Appellant has appealed against is non-existent. He argues that, whereas the Appellant claims to be dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo as contained in the Ruling of D.U. Okorowo, J. dated 17th September, 2015 in suit number FHC/TAR/CS/5/2015, there is no such suit in existence between her (INEC) and the Appellant, just as there is no decision of the Federal High Court, Jalingo in suit number FHC/TAR/CS/5/2015, which could have been the subject of an appeal between the Appellant and the 3rd Respondent.
Counsel submits that, by Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), an Appeal must relate to the decision of the lower court. Thus, the non-existence of a decision in the suit to which the Appellants Appeal relates, vitiates his Notice of Appeal dated 21st October, 2015, making the Appeal incompetent. He relies on Odunze V Nwosu (2007) 31 NSQCR 1 at 28. He therefore urged the Court to strike out the Notice of Appeal.
As afore-stated, the Appellant in his Reply Brief of argument did not address any of the grounds of objection raised by the 3rd Respondent. Instead, in oral arguments before the Court, Counsel submitted that he was adopting his arguments in respect of the 1st and 2nd Respondents objection, in reply to the 3rd Respondents objection. This however did not take into consideration the fact that this ground of objection was only raised by the 3rd Respondent. The 1st and 2nd Respondents did not canvass such a ground in their Brief of argument. Thus, as it stands, there is absolutely no response to the 3rd Respondents objection on this crucial ground.
The initiating process for an Appeal before an appellate court is the Notice of Appeal. The Notice of Appeal contains the subject matter of what the appeal is all about. See Dingyadi V INEC (2010) LPELR-952(SC) at 60; (No. 2) (2010) 18 NWLR (Pt. 1224) 154; & Anadi V Okoli (1977) LPELR-479(SC) at 3-4. It is a very important document because it is the foundation and substratum of every Appeal. Any defect will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. It is the Notice of Appeal which gives the court jurisdiction to hear an appeal. Once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the court to consider.
Thus, any defect in the Notice of Appeal goes to the root of the appeal and robs the court of jurisdiction to hear the appeal. If no proper Notice of Appeal has been filed, then there is no appeal for the court to entertain. See: FBN Plc V Maiwada (2012) LPELR-9713(SC); FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) at 49; Uwazurike V AF Federation (2007) 8 NWLR (Pt. 1035) 11; AG Federation V Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187; CBN V Okojie (2004) 10 NWLR (Pt. 882) 488; & Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622.
An examination of the Notice of Appeal filed at the Federal High Court Taraba State Division sitting in Jalingo discloses that it is a complaint against the Ruling of the Court delivered on 17th September, 2015 in suit number FHC/TAR/CS/5/15. To quote directly from page 1 of the said Notice (contained at page 294 of the printed Record of Appeal), it states thus:
NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D.U. Okorowa, Judge, dated the 17th day of September, 2015, in SUIT NO: FHC/TAR/CS/5/15, do hereby appeal to the Court of Appeal, Holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves set out in paragraph 4 (Emphasis supplied)
It would amount to flogging a dead horse to belabor this issue, as the facts are explicit and obvious on the face of the Notice, and so eloquently speak for themselves. The Ruling complained of in this Notice of Appeal is a Ruling of the said Court in suit number FHC/TAR/CS/5/15; whereas the Ruling of the lower Court (at pages 246 to 258 of the Record) is in respect of suit number FHC/TAR/CS/14/15. Consequently, it is patently obvious that the Notice of Appeal (at page 294 of the Record of Appeal) has no bearing on the said Ruling of the Federal High Court Taraba Division. Since there is therefore a disconnect and no nexus between decision appealed against in the Notice of Appeal and the Ruling of the trial Court, the Notice of Appeal is fatally defective and indubitably incompetent. Consequently, there is no appeal against the decision issued by the Federal High Court Taraba Division sitting in Jalingo on 17th September, 2015 in suit number FHC/TAR/CS/14/15 between David Sabo Kente V Darius Dickson Ishaku & 2 others. That being the case, this Court has no jurisdiction to entertain the said Notice of Appeal dated 21st October, 2015 and filed on 22nd October, 2015, as same is appealing against an unknown, strange and alien decision which is not before this Court in the Appeal entered in this Court by virtue of the Record of proceedings transmitted on 16th November, 2015. See FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) at 50. It is no wonder that the Appellant was thunderstruck, speechless and had no answer to these two grounds of objection raised by the 3rd Respondent. It would however have been more honorable and, at the same time, would have saved precious judicial time if Counsel had, upon realizing this fundamental error to its originating process, simply and properly withdrawn the Appeal from the onset. The slur is unquestionably fatal to the Appeal. As a result, the Notice of Appeal dated 21st October, 2015 and filed on 22nd October, 2015, as well as the Appeal in its entirety, is struck out on the ground of incompetence.
Having struck out the Appeal, this Judgment should ordinarily end here. However, being an intermediate Court, I will still look into the issues for determination formulated from the other grounds of the preliminary objection to the Appeal, as canvassed by Counsel for the 1st and 2nd Respondents, as well as the grounds of objection of the 3rd Respondent. I therefore intend to address issue one distilled from grounds 1 and 2 of the 1st and 2nd Respondents grounds; and then address issue 2 distilled from grounds 3 and 4 of the 1st and 2nd Respondents grounds taken together with the alternative grounds 3 and 4 of the 3rd Respondents grounds of objection.
Whether in the face of the Grounds of Appeal, with particular reference to grounds 1 and 3, and issues 1 and 2 formulated therefrom, jointly with grounds 2 and 4, the said issues are not rendered incompetent. (Grounds 1 and 2 of the objection)
Under this issue, learned Counsel for the 1st and 2nd Respondents submits that issue one for determination in the Appellants Brief of argument was distilled from grounds 1 and 2 of the Grounds of Appeal. However, ground one has no relationship with the decision of the lower Court since the suit was filed at the Registry of the Federal High Court Taraba Division, and not the Abuja Division of the Federal High Court. He therefore contends that the ground is incompetent. That being the case, issue one having been formulated from an incompetent ground one and a competent ground two, renders the issue also incompetent.
In respect of Ground 3, Counsel contends that it is strange to the Judgment of the trial Court because contrary to the contention of the Appellant therein, the issue touching on Sections 97 & 98 of the Sheriffs and Civil Process Act, rather than being raised suo motu by the lower Court, was actually raised by the 1st Respondent and the Appellant joined issues on it before it was thereafter resolved by the lower Court. Counsel submits that a ground of appeal is a complaint directed at the unfavourable decision of the Court against the Appellant. Thus, any ground of appeal that is extraneous to the decision appealed against is incompetent and liable to be struck out. He relies on Sheidu V State (2014) ALL FWLR 1381 at 1391, para D; Calhorie Ltd V International Bank Plc (2014) ALL FWLR (Pt. 723) 1957 at 1982, para B (CA); Olufeagba V Abdur-Raheem (2010) ALL FWLR (Pt. 512) 1033 at 1062, paras F-H (SC); Nwankwo V Customary Court Ndiawe, Arondizuogu (2010) ALL FWLR (Pt. 531) 1516 at 1530), paras D-E (CA); Madumere V Nwosu (2010) ALL FWLR (Pt. 545) 263 at 280, paras D-E (CA); amongst others.
Counsel submits further that the Appellant formulated issue one from the defective ground 1 and a competent ground 2, while he formulated issue two from an incompetent ground 3 and a valid ground 4. He submits that an invalid ground cannot give birth to a valid issue for determination. He also argues that when an issue is a product of an unholy marriage of a competent ground and an incompetent ground, the issue itself is contaminated and thus rendered incompetent. For this, he relies on Akeredolu V Mimiko (2014) ALL FWLR (Pt. 728) 829 at 848, paras C-E; Famurewa V Onigbogi (2010) ALL FWLR (2010) (Pt. 551) 1458 at 1474, para F.
Learned Counsel for the Appellant filed a response to the 1st and 2nd Respondents preliminary objection to the hearing of the Appeal as part of his Reply Brief of argument on 09-03-2016. Therein, he distilled one lone issue for determination as follows:
Whether the preliminary objection as argued by the 1st and 2nd Respondents has merit?
In response to the arguments of the 1st and 2nd Respondents, Counsel submits that Part one of the Notice of Appeal No. CA/YL/106/15 states that the Appeal is against the decision of Hon. D.U. Okorowo, Judge, dated 17th day of September, 2015 in suit No. FHC/TAR/CS/14/15; while Part two of the Notice of Appeal states that the Appeal is against the whole decision. He contends that the statement implies the decision of Hon. D.U. Okorowo, Judge, dated the 17th day of September, 2015 in suit no. FHC/TAR/CS/14/15. He argues that the preliminary objection is a subtle invitation to the Court to descend into the arena of technicalities, which he asked the Court to resist. He relies on Argwuegbo V Kangoma (2000) 14 NWLR (Pt. 687) 252 at 258; & Awuse V Odili (2004) 8 NWLR (Pt. 76) 481 at 495. He urged the Court to resolve the issue in favour of the Appellant and to dismiss the objection of the 1st and 2nd Respondents.
There is no gainsaying the fact that the Court of Appeal derives its appellate jurisdiction from Section 241(1) the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The right of appeal as conferred by the Constitution is tied to the questions the Court is being invited to adjudicate upon. It is always the grounds of appeal that define the issues being submitted to the court for adjudication. It is therefore important that the grounds of appeal framed in an appeal be made clear and explicit so as to properly activate the appellate jurisdiction of the Court of Appeal. It is through an examination of the grounds of appeal that it can be decided whether or not the appellate jurisdiction of the Court is being appropriately invoked. For instance, if a notice of appeal carries no ground of appeal or carries grounds of appeal all of which are incompetent, the appellate jurisdiction of the court would not have been invoked by such grounds. As was held by Oguntade, JSC in Ikweki V Ebele (2005) 11 NWLR (Pt. 936) 397; (2005) LPELR-SC.75/1966, 1 at 22:
a valid notice of appeal can be likened to a key by which entry is gained into a house or an apartment; without the right key the door to the house or apartment remains shut.
It is also a well settled proposition of law that the grounds of appeal against a decision must relate to the decision and should constitute the ratio of the decision. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely, arise from the Judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance or of general public interest, it must be connected with a controversy between the parties. Thus, like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against. It is impermissible for a person to found his right of appeal on a matter that did not arise in the course of proceedings.
Thus, the law is elementary that grounds of appeal must necessarily arise from the Judgment, ruling, decision or any pronouncement of the lower Court. When a ground of appeal is not remotely connected with the decision of the lower Court, which decision agitated the Appellant to approach the appellate court in the first place seeking to have it overturned; the ground and the issue formulated therefrom cannot stand. Grounds of appeal are certainly not formulated in the abstract. They must arise from the Judgment, in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. See: Peter V Uzor (2006) 8 NWLR (Pt. 981) 66; Mercantile Bank of Nig. Plc V Nwobodo (2005) LPELR-SC.38/2001 at 8-9; Bakule V Tenerewa (Nig.) Ltd (1995) 2 NWLR (Pt. 308) 724 at 739-740; Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184; Egbe V Alhaji (1990) NWLR (Pt. 128) 546 at 590; & Adesanya V President of Nigeria (1981) 2 NCLR 358.
In Iloabachie V Iloabachi (2000) 5 NWLR (Pt. 656) 194, this Court held as follows:
A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where the factual basis for attacking a judgment is false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. It constitutes a clear misrepresentation of the decision of the trial Court which vitiates the basis of the complaint on appeal.
It was also expatiated by Adekeye, JSC in: The Minister of Petroleum & Mineral Resources V Expo-Shipping Line (Nig.) Ltd (2010) LPELR-SC.1/2003, 1 at 43 thus:
The grounds of appeal are the reasons for considering a Judgment or decision of a court wrong. The purpose of the grounds is to isolate and accentuate for attack the basis of the reasoning of the decision being challenged. It is furthermore meant to give notice to the respondent of the errors complained of. The grounds of appeal filed and argued should address themselves to and consider the facts of each particular case.
In addition to the Grounds of Appeal, it has also been decided in a long line of cases that issues should be formulated in practical terms, tailored to the real issues in controversy in such a way that they must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal. Also, the law has been re-stated times without number that the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. Therefore, there is a need for issues for determination to arise out of and be limited to the grounds of appeal filed. See Agbaisi V Ebikorefe (1997) LPELR-SC.250/1990; (1997) 4 NWLR (Pt. 502); Nwosu V Imo State Environmental Sanitation Authority (190) 2 NWLR (Pt. 135) 688 at 714; Adelaja V Fanoiki (1990) 2 NWLR (Pt. 131) 137 at 148; Momodu V Momoh (1991) 1 NWLR (Pt. 169) 608; Onifade V V Olayiwola (1990) 7 NWLR (Pt. 161) 130; Okon V State (1995) 1 NWLR (Pt. 372) 382; Idise V Williams Intl Ltd (1995) 1 NWLR (Pt. 370) 142; Onwumere V The State (1991) 4 NWLR (Pt. 186) 428; Oje V Babalola (1991) 4 NWLR (Pt. 185) 267; & Agbetoba V Lagos State Executive Council (1991) 4 (Pt. 188) 664.
After a critical study of the grounds of appeal in the instant Appeal, it is manifest that grounds one and three were indeed not targeted against the Judgment of the trial Federal High Court delivered on 17-09 -2015. As afore-stated, it is settled law that grounds of appeal must be prepared in a way as to bring the errors in the judgment of the court against which an appeal has been filed to the appellate court. In the instant Appeal, ground one of the Grounds of Appeal (at page 295 of the Record) states thus:
The Honourable trial Court misdirected itself when without adverting his mind to the facts that the originating process was instituted at and duly issued by the Abuja Judicial Division of the Court and consequently transferred to the Taraba Judicial Division proceeded to hold:
I have perused the records of this court and I find no where the plaintiff initiated any application or leave to issue processes in this case the noncompliance is a fundamental vice and goes to the root of the action. The originating summons and other processes field (sic) with it are invalid, defective and ought to be set aside as this court has no jurisdiction.
PARTICULARS OF ERROR
1. The originating summons was filed in and issued by the Abuja Judicial Division of the court. (Emphasis supplied)
While issue one framed for determination states as follows:
(i) Whether, in the circumstances of the suit of the Appellant, any of the provisions of the Rules of the lower Court or Sheriffs and Civil Process Act, regarding the issuance and service of originating process was violated?
What is interesting is that, contrary to the complaint etched out in ground one, the Originating Summons which initiated the suit of the Plaintiff at the lower Court was actually issued at the Federal High Court Taraba State Division, and not at the Federal High Court, Abuja Division as categorically stated by the Appellant in his complaint against the decision of the lower Court in ground one. (See pages 6-12 of the Record). The Originating Summons therein is visibly and unmistakably headed:
In the Federal High Court of Nigeria
In the Jalingo Judicial Division
Holden at Jalingo
It is also stamped by the cashier at the Federal High Court, Taraba Division on 01-04-2015 (page 11 of the Record). In like vein, the affidavit in support of the Originating Summons, (at pages 13-106 of the Record), was duly sworn before the Commissioner for oaths of the Federal High Court of Nigeria, Taraba Division on the same date (page 15 of the Record). I have not found any process within the transmitted Record of Appeal, and none was referred to this Court by the Appellant, that bears out the contention in ground one that the suit was filed in the Abuja Division of the Court of Appeal. Therefore, what this simply means is that ground one of the Grounds of Appeal is in conflict with the facts in the Record of proceedings of the trial Court. Consequently, and by the same token, the premise upon which issue one was distilled is baseless.
To complicate matters further, the Appellant, (in paragraph 7.01 at page 5 of the Appellants Brief of argument), communally distilled issue one from ground one and ground two of the Grounds of Appeal. Since issue one was jointly distilled from an incompetent ground one and a competent ground two, it is an unholy alliance with one ground contaminating the other ground. In other words, issue one is formulated from defective ground one and an otherwise competent ground two. Since it is not the place of this Court to perform a surgical operation to incise the good ground from the bad ground, I am obliged to agree with the submission of learned Counsel for the 1st and 2nd Respondents that an invalid ground cannot give birth to a valid issue. Issue one formulated therefrom is therefore incompetent and liable to be struck out.
Yet again, issue two formulated for the determination of the Appeal by the Appellant is said to be distilled from Grounds three and four of the Grounds of Appeal. For ease of reference, these grounds state as follows:
The honourable trial Court misdirected itself in its decision thereby occasioning grave miscarriage of justice, when it suo motu and without inviting the parties to address it, raised the issue of noncompliance with the provisions of section 97 and 98 of the Sheriffs and Civil Process Act (Supra) and resolved same thus:
Both Sections 97 and 98 of the Sheriffs and Civil Process Act are requirements of the Statute which prescribes conditions for issuance of the Writ. Failures to comply with the provisions make the Writ invalid and void. The action based on them is therefore incompetent and liable to be struck out.
PARTICULARS OF THE ERROR
1. None of the Respondents complained about the fact that the originating processes were not endorsed as stipulated in section 97 and 98 of the Sheriffs and Civil Process Act (Supra)
4. The Court must afford parties the opportunity of being heard on new issues raised suo motu.
6. Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) do not apply to the case before the trial Court.
7. The Appellant was denied the right to be heard on the point raised by the trial Court. (Emphasis supplied)
The honourable trial Court erred in law, when in the course of its determination of the question of locus standi/cause of action, examined considered and applied the facts deposed to in the affidavit in support of the objection and resolved thus:
It shows that the averment contained in paragraph 5 to 9 of the 2nd defendants Affidavit in support of the Objection are deemed admitted. That is to say that plaintiff did not participate in the primary of the 2nd Defendant which he seeks to challenge by this suit. It also means that the plaintiff admitted he was a candidate of social Democratic Party in the April, 2015 Senatorial Elections in Taraba State.
Issue two distilled from these two grounds (paragraph 8.01 at page 8 of the Appellants Brief of argument), states as follows:
(ii) Whether, in the determination of the question of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating processes?
As in the case of issue one above, clearly ground three of the Grounds of Appeal has nothing to do with issue two which is said to be distilled therefrom. The content of issue two neither flows from the Ground nor is it circumscribed by the complaint in the ground, especially as highlighted in its particulars. This is so because, whereas issue two centers around the question of which of the processes filed before the lower Court should be examined in order to determine the locus standi of the Plaintiff (incorporating the complaint in ground four), ground three, the second ground from which it is distilled complains that the learned trial Judge misdirected itself when it suo motu raised an issue of non-compliance with Sections 97 and 98 of the Sheriffs and Civil Process Act, (which deals with the endorsement of process served outside jurisdiction), and resolved same without hearing from the parties. The issue therefore does not relate with and has no relevance to ground three at all. This is notwithstanding the fact that it does relate to ground four.
In addition to this, contrary to the complaint in ground three, the issue of non-compliance with Sections 97 and 98 of the Sheriffs and Civil Process Act alleged to have been raised suo motu by the trial Court, is once again not borne out by the printed Records of the lower Court. Instead, an examination of the first ground of the preliminary objection raised by the 1st Defendant (now 1st Respondent) at the trial Court (page 148 of the Record), reveals that the issue of such non-compliance was actually raised by the 1st Defendant as a ground/argument to persuade the lower Court to declare the suit incompetent. The 1st Defendant proceeded to distill an issue from the said ground of objection (at page 158 of the Record).
Thereafter, the Plaintiff (now Appellant), in his response to the ground of objection, joined issues with the 1st Defendant thereon: (see page 214 of the Record). Consequent upon the arguments advanced by both parties on the issue, the trial Court proceeded to resolve the issue as it did (at pages 291-292 of the Record of proceedings). In view of these explicit proceedings on this issue, the complaint in ground three of the Grounds of Appeal is again not borne out by the Record of the lower Court. It is misleading, to say the least. Since a ground of appeal is a complaint against an unfavourable decision of a lower court made against the Appellant, the complaint that the lower court suo motu raised the issue of non-compliance with Sections 97 & 98 of the Act and resolved it without hearing from the parties, is based on a false premise and is thus a ground which is extraneous to the decision of the lower Court appealed against. See Akeredolu V Mimiko (2014) ALL FWLR (Pt. 728) 829 at 848 & 884, paras C-E; MM V J & Sons (Nig) Ltd (2014) ALL FWLR (Pt. 547) 776 at 783, para F; Zakhem Oil Serve Ltd V Art in Scince Ltd (2010) ALL FWLR (Pt. 547) 776; & Balonwu V Gov. Anambra State (2010) ALL FWLR (Pt. 516) 471 at 488, paras H-A.
In Garba V Omokhodion (2011) ALL FWLR (Pt. 596) 404; (2011) 12 NWLR (Pt. 1269) 145, the Apex Court, on similar facts, held inter alia thus:
It is equally settled that a ground of appeal must correlate with as well as arise from the decision appealed against and should frontally attack the ratio of the decision otherwise it is baseless and liable to be struck out being incompetent. The rationale is that incompetent grounds of appeal cannot be argued along with competent grounds of appeal and so, are liable to be struck out. The said grounds 2, 3, 6 and 10 are accordingly struck out.
Accordingly, ground three of the Grounds of Appeal from which issue two is distilled is therefore incompetent and also liable to be struck out. Once again, since an invalid ground is incapable of giving birth to a valid issue for determination, issue two in the Appellants Brief of argument jointly distilled from ground three and ground four of the Grounds of Appeal is incompetent. I do so find.
In respect of the submission of the Appellant on the objections canvassed herein, I agree that the age of technical justice is gone. The current vogue is substantial justice. However, substantial justice can only be attained, not by bending the law, but by applying it as it is and not as it ought to be. There is nothing technical about applying the provisions of the Constitution relating to appeals to this Court as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the Constitution or statute is rightly invoked. See: FBN Plc V Maiwada (2012) LPELR-9713(SC). Issue one of this objection is therefore resolved in favour of the 1st and 2nd Respondents.
2. Issue two of the 1st and 2nd Respondents preliminary objection:
Taking into cognizance the fact that issues for determination 3 and 4 have no correlation with the Grounds they are said to be distilled from, whether the said issues are not rendered incompetent (Grounds 3 and 4 of the objection)
Issues three and four of the 3rd Respondents preliminary objection:
3. Issues 3 and 4 raised by the Appellant are not distillable from grounds 5, 6 and 7 of the grounds of appeal.
4. Grounds 5, 6 and 7 are deemed abandoned thereby rendering the Appellants Appeal unsustainable.
Under the 1st and 2nd Respondents issue two, learned Counsel submits that, although issue three in the Appellants Brief is said to be distilled from ground 5 of the Grounds of Appeal, and issue four from grounds 6 and 7, a juxtaposition of the grounds and the issues reveal the contrary. He submits that an issue for determination must relate to the ground of appeal. Any issue formulated in nubibus or not in correlation with the ground is incompetent. An issue for determination must not only flow from the ground but must be circumscribed by the complaint in the grounds of appeal as highlighted by their particulars. The consequence of this slur is that the arguments would be discountenanced along with the issues. He relies on the following authorities amongst others: Contract Resources Nig Ltd V Standard Trust Bank Ltd (2014) ALL FWLR (Pt. 713) 1835 at 1850, paras G-H (SC); Ita V Dazie (2013) ALL FWLR (Pt. 683) 1880 at 1888, para E (SC); Abba V SPDC Nig Ltd (2013) ALL FWLR (Pt. 708) 812 at 828, paras C-D (SC); Transamericana Corporation V Akande (2014) ALL FWLR (Pt. 759) 1077 at 1089, paras E-F; Ezeanochie V Ofobuike (2014) ALL FWLR (Pt. 729) 1129 at 1144-1145, paras G-A (CA); Naude V Simon (2014) ALL FWLR (Pt. 753) 1878) at 1908, paras D-C; & Nduwe V Ojiakor (2013) ALL FWLR (Pt. 673) 1804 at 1814-1815, paras G-A (SC). Counsel finally submits that the resolution of issues one and two framed in the preliminary objection in favour of the 1st and 2nd Respondents would leave the Appeal without any issue for determination, thus rendering the Appeal incompetent. He therefore urged the Court to strike out the Appeal.
On his part, learned Counsel for the 3rd Respondent submits that issue three distilled by the Appellant in his Brief of argument does not relate and is not distillable from ground five of the Grounds of Appeal; while issue four does not also relate to grounds six and seven of the Grounds of Appeal. He argues that issue three is in respect of the merit or otherwise of the Appellants claim before the lower Court, and so the issue of why and how the Appellant lacked locus standi to maintain the action before that Court cannot be argued under it. He also argues that issue four is not about the Appellants action being statute-barred, while ground seven is not within the contemplation of issue four. Counsel submits that the resultant effect is that no issue has been formulated from grounds 5, 6 and 7 of the Grounds of Appeal, and therefore the grounds are deemed abandoned and liable to be struck out, as well as issues three and four formulated therefrom, which are incompetent. He relies on Adelekan V Ecu-Line NV (2006) 5 SC (Pt. II) 32; Ukiri V Geco-Prakla Nig Ltd (2010) 6-7 SC 192 at 205; & Omagbemi V Guiness Nig Ltd (1995) 2 NWLR (Pt. 377) 258 at 266-267. He submits further that since no issue for determination was formulated from grounds eight and nine of the Grounds of Appeal, they are deemed abandoned.
Counsel thus submits that the Appeal is unsustainable and liable to be dismissed. He therefore urged the Court to uphold the objection and dismiss the Appeal.
The Appellant, in his Reply Brief of argument, made no specific responses to the issues argued under these grounds of objection by the Respondents, aside from terming them technicalities and asking the Court to discountenance same. There is no written response to the preliminary objection by the 3rd Respondent. However, during oral submissions in Court, Counsel for the Appellant adopted his submissions in respect of the 1st and 2nd Respondents objections to apply in respect of the 3rd Respondents objection.
In determining these objections raised to the hearing of the Appeal, it is expedient to first set out the contents of Ground 5 of the Grounds of Appeal, vis-à-vis issue 3 distilled from this ground in the Appellants Brief of argument.
The honourable trial Court erred in law when it held:
Accordingly, plaintiff having not shown any injury he suffered to warrant the reliefs sought against the defendants have no locus to maintain the action. This court cannot pronounce on the validity of the primary election except at the instance of a person who has shown that his right is offered (sic) by the exercise
PARTICULARS OF THE ERROR
1. It is fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of the Court to entertain the suit.
2. In private law, the question of locus standi is mereged (sic) with the cause of action.
3. The Exhibit considered by the lower Court to decline jurisdiction is not part of the claims of the Appellant.
4. The lower Court failed to give deserved consideration to the Exhibits which entitled the Appellant to enforceable claims.
Issue 3 in the Appellants Brief of argument, said to have been distilled from this ground, states as follows:
5. Issue Three:
Whether, in the circumstance of the default of defence/response to the originating processes filed by the Appellant, he is entitled to the judgment of the lower court in terms of the indorsed relieves (sic)?
From a critical examination and analysis of the above, it is evident, at least to me, that Ground five from which issue three is crafted, complains of the trial Courts finding on the absence of locus standi of the Plaintiff (now Appellant). His complaint therein is that, contrary to the finding of the learned trial Judge as quoted in the body of the ground of appeal, it is the Plaintiffs claim, and not the Defendants affidavit filed in support of their preliminary objection (before the lower Court), that should have been examined in order to determine the Plaintiffs locus standi. However, quite surprisingly, issue three crafted from ground five questions whether the lower Court should not simply have entered Judgment for the Appellant in the absence of any defence to the claim filed by the Defendants. In my humble view, this issue does not arise from the ground of appeal which complains on the Courts finding on locus standi; instead it is at cross-purposes with the ground. It is therefore incompetent. As has been highlighted earlier under issue one of the objection, issues for determination must encompass the grounds of appeal, otherwise any argument in support of an issue not adequately backed by a ground or grounds of appeal will be discountenanced and struck out by the court. The authorities on this are legion, very clear and instructive: Adah V Adah (2001) LPELR-68(SC) at 10-11; (2001) 5 NWLR (Pt. 705) 1; Kala V Potiskum (1998) 3 NWLR (Pt. 540) 1 at 10-11; Animashaun V UCH (1996) 10 NWLR (Pt. 476) 65 at 70; Jallco Ltd V Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 547; Omagbemi V Guinness (Nig) Ltd (1995) 2 NWLR (Pt. 377) 258 at 266-267; Cross River State Newspapers Corp V Oni (1995) 2 NWLR (Pt. 371) 270 at 284-285; & Idise V Williams International Ltd (1995) 1 NWLR (Pt. 370) 142 at 150.
Further to this, grounds six and seven of the Grounds of Appeal and issue four distilled therefrom state as follows:
The honourable trial Court misdirected itself when, in default of defence/response to the originating summons instituted by the appellant, proceeded to entertain and determine the preliminary objection filed by the Respondents and held:
Accordingly, the court has no jurisdiction to entertain the action.
PARTICULARS OF THE ERROR
1. None of the Respondents filed a counter-affidavit to the originating summons instituted by the appellant as required by the law or the rules of the court
Where a defendant failed or neglected to file a defence h (sic) will be deemed to have admitted the claims of the plaintiff thus, leaving
1. the court seized with the matter with the authority to peremptorily enter judgment for the plaintiff
2. The Honourable trial court ought to have considered or remained bound by depositions in support of the originating summons which the Respondents did not deny or controvert or challenge or rebut
3. The Honourable trial court failed in it (sic) judicial responsibility to address or evaluate the case made out or argument presented before it to sustain the claims of the appellant
4. It is trite that a court misdirects itself if it misconceives the issue or misapplied the evidence before it or makes a mistake on law.
The learned trial Judge erred in law when he held that the action by the Appellant is statute-barred and dismissed same.
Whether, in the determination of the application of the 1st and 2nd Respondents, the lower Court glossed over the fundamental issues, decisive evidence and crucial legal submissions?
As for Ground six of the grounds of appeal, after proper examination, I find that it again complains of the trial Courts failure to enter Judgment promptly and peremptorily, in default of any defence filed by the Defendants. However, the issue distilled therefrom complains of an improper evaluation/assessment of evidence. Yet again, it needs no soothsayer/clairvoyant to fathom this and arrive at the irresistible conclusion that the issue really has no correlation with the ground from which it was purportedly distilled. In the same vein, ground seven complains about the finding of the trial Court that the suit was statute-barred. And yet this is not incorporated both in the issue for determination nor in the arguments proffered thereunder in the Brief of argument. Thus, grounds six and seven of the grounds of appeal are diametrically opposed to issue four crafted from it. Being poles apart in content and meaning, both the grounds and the issue cannot stand. They are incompetent. I do so find. It cannot be emphasized enough that issues raised by an appellant must be related to and confined to the decision complained against the grounds of appeal filed. The grounds become incompetent and abandoned when the requirement is not met. This court shall not consider an abandoned ground of appeal. See FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) at 50. Issue two is therefore also resolved against the Appellant, and in favour of the Respondents.
Thus far, having earlier resolved grounds 1 and 2 of the preliminary objection of the 3rd Respondent against the Appellant and accordingly struck out the Appeal on the ground of the incompetence of the defective Notice of Appeal; and having now resolved issues 1 and 2 of the 1st and 2nd Respondents preliminary objection as well as grounds 3 and 4 of the 3rd Respondents preliminary objection against the Appellant, it will merely amount to an academic exercise to embark on a consideration of the 3rd issue for determination argued in the 1st and 2nd Respondents preliminary objection. The same applies to the issues raised in the substantive Appeal.
I am well aware that as a general rule, an intermediate court, such as this Court, has a duty to pronounce on all issues before it. See: Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522. In this respect, this Court is unlike the Supreme Court which, as the apex court of the land, is vested with authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See: Shasi V Smith (2010) 6 WRN 39 at 68; Uzuda V Ebigah (2009) 48 WRN 1. Nonetheless, there exist some exceptions to this broad rule that applies to the Court of Appeal as an intermediate court. For instance, where the Court decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction. See: Falade (1995) 5 NWLR (Pt. 396) 385 at 407; Ifeanyi Chukwu (Osondu) Ltd V Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at 352. What this means therefore is that, where a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the Appeal. See: Onigemeh V Egbochualam (1996) NWLR (Pt. 448) 255; NEPA V Ango (2001) 15 NWLR (Pt. 737) 627; Uwazurike V AG, Federation (supra).
In the circumstance, there is nothing more worth considering in the Appeal. It lacks everything that any court should look for in an attempt to determine the credit of an appeal from a forensic point of view, the premise upon which the Appeal is based having crumbled like a pack of cards. This conclusion, as aforesaid, obviates the need to consider the arguments in the main appeal. This must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit. Indeed, that is why this court is under an obligation to resolve the issues agitated in the two sets of preliminary objections before taking any further step in the appeal. Thus, since the preliminary objections to the competence of this appeal have succeeded, the proceedings in the appeal are aborted, and the need to consider the issues raised therein automatically abates. The Appeal having been found incompetent, this Court lacks jurisdiction to entertain the Appellants agitation, which is woven around it. See Ikuepenikan V State (2015) LPELR-SC.402/2010 at 33-34; Onyemah V Egbuchulam (1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237; AG Federation V ANPP (2003) 12 SCNJ 67 at 81-82; Jim-Jaja V COP Rivers State (2012) LPELR-20621(SC) 10, para F; Okoi V Ibiag (2002) 10 NWLR (Pt. 776) 445 at 468; UBA Plc V ACB (2005) 12 NWLR (Pt. 939) 232; Goji V Ewete (2001) 15 NWLR (Pt. 736) 273 at 280; L.M. Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011) LPELR-8807; Ananeku v Ekeruo (2002) 1 NWLR (Pt. 748) 301; NPA V Eyamba (2005) 12 NWLR (Pt. 939) 409; UBN V Sogunro (2006) 16 NWLR (Pt. 1006) 504; Uwazurike V AG, Federation (2007) LPELR-3448(SC) 14; Okoye V Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import & Export V Adebayo (2003) FWLR (Pt. 140) 1686.
In all, I find considerable merit in the two sets of preliminary objections. I therefore enter an order upholding them. Accordingly, I hereby strike out the Notice of Appeal, and the Appeal in its entirety, for its incompetence, with costs to each of the Respondents in the sum of N100, 000.00 each.
SAIDU TANKO HUSAINI
My Lord, JummaiHannatuSankey, JCA obliged me with the draft copy of the lead Judgment just delivered. I endorse the conclusions herein that this appeal be struck out based on the Preliminary Objection taken. I also abide by the order in the lead Judgment as to Cost.
BIOBELE ABRAHAM GEORGEWILL, JCA:
I have been afforded in advance a draft copy of the judgment just delivered by my lord, JUMMAI HANNATU SANKEY, JCA; and I am in complete agreement with the reasons and conclusions reached therein which I adopt as mine. I have nothing more to add.
I too hold that the Notice of Appeal is incompetent and thus rendered the entire appeal incompetent and is thus liable to be struck out. Consequently, I too hereby strike out the appeal for being incompetent. I shall abide by the consequential orders made in the lead judgment.?
Abbas Ajiya Esq. appears for the Appellant.
A.J. Akanmode Esq. with, M.I. Siman Esq., E.A. Ibrahim Effiong Esq. and A.B. Ahmad Esq., appears for the 1st and 2nd Respondents.
J. Olabode Makinde, Esq. appears for the 3rd Respondent.