AKPANETTE v. OTU & ORS (2020)

AKPANETTE v. OTU & ORS

(2020)LCN/14513(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/154/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

OBONG ESSIEN AKPANETTE APPELANT(S)

And

OBONG SUNDAY ASAMUDO OTU 2. THE TRADITIONAL RULER’S COUNCIL, EKET 3. COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS (AKWA IBOM STATE) 4. THE EXECUTIVE GOVERNOR (AKWA IBOM STATE) RESPONDENT(S)

RATIO

WHETHER OR NOT A GROUND OF APPEAL MUST BE BASED ON THE RATIO DECIDENDI OF THE TRIAL COURT

A ground of appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it. To be competent, a ground of appeal must be based on the ratio decidendi of the trial Court.
See F. B. N. Plc. vs. May Med. Clinics (1996) 9 NWLR (Pt. 471) 195; Folbod Invest. Ltd. vs. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 344 at 351; BOSIEC vs. Kachala (2006) 1 NWLR (Pt. 962) 587; Ngige vs. Obi (2006) 14 NWLR (Pt. 999) 1 Adewumi vs. Adebest Tele Communication (Nig.) Ltd. (2013) ALL FWLR (Pt. 703) 1954; Alabi vs. Kwara State Polytechnic (2013) ALL FWLR (pt. 683) 1926.
Furthermore, since the Appellant’s grounds of appeal are not derived from the ratio decidendi of the judgment of the Court below, the issues formulated from those said grounds of appeal are also incompetent. Any issue distilled from an incompetent ground of appeal is itself incompetent and ought to be struck out alongside any argument based thereon. This is because it is the grounds of appeal that provides the legal basis for any attack on the judgment or ruling of a trial Court. It is the grounds of appeal that give life, meaning and content to the issues raised in the appeal for determination. See John Holt Ventures Ltd. vs. Oputa (1996) 9 NWLR (Pt. 470) 101 at 113; Ononiwu vs. R. C. C. Ltd. (1995) 7 NWLR (Pt. 406) 214; Sadiku vs. A-G, Lagos State (1994) 7 NWLR (Pt. 355) 235; U.B.A. Plc. vs. A.C.B. (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 232; Ifabiyi vs. Adeniyi (2000) 5 SC 31 at 42; A. C. B. vs. Integrated Dimensional System Ltd. (2012) LPELR 9710 (SC); Governor of Nasarawa State & ORS. Vs. SHEWAZA (2017) LPELR – 44032 (CA). PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State at Eket presided over by Obot J. in Suit No. HEK/140/2012 wherein the Court dismissed the claim of the Appellant/Plaintiff.

By a writ of summons filed along with statement of claim on 26th November, 2012 the Appellant as Plaintiff claimed against the Respondent (Defendant) as follows:
i. A DECLARATION that the Plaintiff is the duly selected Clan Head of Eket Offiong Clan in Eket, Akwa Ibom State.
ii. A DECLARATION that the 1st Defendant was never at anytime selected by the Eket Offiong Clan as Clan Head.
iii. A DECLARATION that it was wrongful for the 2nd Defendant to disqualify the voters who voted for the Plaintiff.
iv. AN ORDER of perpetual injunction restraining the 1st Defendant from parading or holding out himself as the Clan Head of Eket Offiong Clan.
v. AN ORDER on the 4th Defendant to issue certificate of recognition to the Plaintiff.

The 1st Defendant in the Suit (now deceased) late Obong Sunday Asamudo Otu filed a statement of Defence on 12th March, 2013 and counter claimed

thus:
i. A DECLARATION that the 1st Defendant is the duly selected Clan head of Eket Offiong Clan in Eket.
ii. A DECLARATION that the Plaintiff was never at anytime selected by Eket Offiong Clan Kingmakers during the meeting of Eket Offiong Clan Council on 13th June, 2012 or at all as the Clan Head elect of Eket Offiong Clan.
iii. A DECLARATION that the two village heads who endorsed the selection forms for both the 1st Defendant on 13th June, 2012 and the Plaintiff on 30th July, 2012 were properly disqualified from voting by the 2nd Defendant and that they never voted at all.
iv. AN ORDER of perpetual injunction restraining the Plaintiff from parading or holding out himself as the clan head elect of Eket Offiong Clan, Eket.
v. AN ORDER compelling the 3rd Defendant to lay the name of the 1st Defendant before the 4th Defendant for the purpose of being issued with certificate of recognition.
vi. AN ORDER on the 4th Defendant to issue certificate of recognition to the 1st Defendant as the clan head of Eket Offiong Clan, Eket.

The Appellant filed a Reply to the 1st Defendant’s statement of defence on 21st May, 2014 but did

not file a defence to the 1st Defendant’s counter claim.

The Appellant as Plaintiff gave evidence, called Chief Akpekong Friday Imeh as PW2 and tendered several documents.
The 1st Defendant (late Obong Sunday Asamudo Otu) did not testify but called DW1 Chief Friday Mbre the village head of Afia Nsit Village, as his only witness.

The case of the Appellant as Plaintiff was/is that he and the late 1st Defendant contested for the vacant Clan Head stool of Eket Offiong Clan. The kingmakers in Eket Offiong Clan met to select a Clan Head and the 1st Defendant (Obong Sunday Asamudo Otu) and his supporters stayed away. That on 3rd October, 2012, he (Appellant) was presented by Eket Offiong Clan to the 1st Respondent (herein) Eket, Traditional Rulers Council as the Clan Head Eket. On the same day, 1st Defendant (late Obong Sunday Asamudo Otu) was also brought by his own faction for presentation to the 1st Respondent (2nd Defendant) as the Clan Head Eket of Eket Offiong Clan. There was an impasse. All the village heads of the 14 villages that make up Eket Offiong Clan and who are the kingmakers under the Eket Offiong custom and tradition were present

at this 3rd October, 2012, presentation ceremony. To resolve the impasse, 1st Respondent (2nd Defendant) asked these 14 village heads/kingmakers to queue behind the candidates they supported between 1st Defendant (late Obong Sunday Asamudo Otu) and Appellant. 8 of the 14 village heads present queued behind Appellant and 6 queued behind the 1st Defendant (late Obong Sunday Asamudo Otu) in what Appellant regarded as an open ballot. The deceased 1st Defendant who clearly lost the election refused to concede defeat. He instead complained that two chiefs namely, Obong Obong Dan Obong, the Udota and Obong Ime David Ibibom, village head of Ikot Usoekong, who queued behind the Appellant had endorsed his (1st Defendant) nomination form. The 1st Respondent (2nd Defendant) decided to disqualify the votes of the 2 Village Heads who had earlier nominated both candidates by endorsing their respective nomination forms. This brought the votes for the Appellant and the deceased 1st Defendant to 6 votes each. Appellant protested because the 1st Respondent had no right to nullify the votes of the two village heads. The two village heads complained against the voiding of their

votes as well. 1st Respondent imposed fines on the two Chiefs whose votes it nullified. The two chiefs paid the fines. Appellant and his supporters staged a walk out but the 1st Respondent in his absence went ahead to vote to elect the deceased 1st Defendant as the Clan Head.

The case of the deceased 1st Defendant through DW1 was that he was elected as Clan Head of Eket Offiong Clan at the meeting of the Eket Offiong Clan Council which was properly convened and presided over by DW1 held at Ikot Odiong Village hall on 13th June, 2012 with Appellant in attendance. DW1 testified that the Eket Offiong Clan Council that elected deceased 1st Defendant presided over by him, was the one that was properly constituted by this Royal Highness Obong Abasi Assam III, was the only legitimate existing Clan Council in Eket Offiong Clan in 2012. DW1 testified that the Eket Offiong Clan Council could only be dissolved by a new Clan Head who was not available on the date of Appellant’s alleged selection by the body he dissolved as Eket Offiong Clan Council chaired by Chief Charles Eno. DW1 witnessed that in accordance with the Eket Offiong Clan custom and tradition,

the accredited venue for the selection of the Clan Head is the Village Hall of the last Clan Head which was at the time Ikot Odiong Village Hall. He denied that the deceased 1st Defendant and the Appellant were presented to the 1st Respondent on 31st October, 2012. That the selection of the Deceased 1st Defendant was communicated to the 1st Respondent and a date for his presentation was fixed by the 1st Respondent for 3rd August, 2012 in their correspondence dated 24th July, 2012.

It is the 1st Defendant’s case that after he was presented; the supporters of the Appellant also brought him for presentation on 3rd August, 2012. The 1st Respondent referred to the selection form and discovered that a total of 16 chiefs had endorsed both nomination forms for the candidates when there were only 14 village heads in the Clan. DW1 testified the kingmakers had not voted for either of the candidates before the 1st Respondent discovered that two chiefs, Obong Dan Obong village head of Etebi Ikot Udota and Ebong Ime David Ibibom village head of Ikot Usoekong had endorsed the selection forms of the 2 candidates. The 2 chiefs were disqualified from voting and fined

by the 1st Respondent. The remaining 12 village heads were those that took part in the election that was said to have been organized by the 1st Respondent. They each scored 6 votes. There was a tie. To break the tie, the 1st Respondent voted and the deceased 1st Defendant emerged as the winner.

At the end of trial and close of addresses by counsel, the learned trial judge found serious inconsistencies in the Appellant’s case especially as to the actual date of election and if there was indeed any election on 3rd August, 2012 as alleged by the Appellant.

At pages 277 – 278 of the Record of Appeal, the trial Court held:
If there was no election on the 3rd August, 2012 when the votes of the 2 village heads were alleged to have been nullified, the nullification of the votes of the two villages was of no effect whatever. To persuade the Court to find that the nullification of the votes were wrongful, Plaintiff had the burden to show that there was an election and the two nullified votes cost him the election. DW1 and Plaintiff’s evidence, that of his witness PW2 and the evidence from the 1st Defendant are all over the place and

materially inconsistent on whether there was election on 3rd August, 2012 or not. These are also inconsistent against the facts contained in the unchallenged Exhibits. Exhibit 1B shows there was no election on 3rd August, 2012. The Clan Head of Idua and the President of 2nd Defendant Obong E. C. D. Abia stressed in Exhibit 1B that there was no election on 3rd August, 2012.
“…rather the council was only calling the kingmakers to file behind the candidate of their choice only to discover that two village heads had signed the selection forms for the 2 contestants…”
Plaintiff did not challenge the content of this Exhibit. He instead depended on it to contain the correct account of what transpired in the selection process. What transpired as recorded against his interest and claims is that there was no election on 3rd August, 2012. It means therefore that he was neither elected on 3rd August, 2012 nor on 3rd August, 2012. He has thus failed to prove the fact of his election. If there was no election then the nullification of the votes of the two chiefs had no effect on the victory or defeat of the plaintiff in the polls when none was held. I am

saying so because the excerpts from the minutes of the meeting of 3rd August, 2012 clearly showed that at the time that the 2nd Defendant took over the election of the Eket Offiong Clan Head, there was no election at all by the kingmakers in the clan.

He concluded that the Appellant (Plaintiff) who had the burden in this case, has not shown in his evidence that he was selected in accordance with the tradition and custom of Eket Offiong Clan. Also, that the purported election of the deceased 1st Defendant by the 1st Respondent (2nd Defendant) was ultra vires the powers allowed the 1st Respondent by extant law and therefore null and void ab initio.

The learned trial judge declared that the Appellant was not duly selected as the Clan Head and that the deceased 1st Defendant was never at any time selected by the Eket Offiong Clan kingmakers as their Clan Head. He also dismissed the 1st Defendant counter claim as abandoned.

Dissatisfied with the above judgment, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 31st January, 2007. This appeal was first heard on 29th January, 2020, when the Appellant and the

Respondents adopted their respective briefs of argument as follows:
1. Appellant’s Brief of Argument filed on 13th May, 2019 (Amended pursuant to Court order dated 6th March, 2019). It is settled by Livinus Udofia Esq.
2. 1st Respondent’s Brief of argument was filed on 19th September, 2019 and deemed filed on 21st January, 2020. It is settled by Nsikak Udo – Assang Esq.
3. 2nd and 3rd Respondent’s Brief of Argument was filed on 19th September, 2019 and deemed filed on 21st January, 2020. It is settled by Bassey Ekanem Esq.

On 9th March, 2020, I caused hearing notice to be issued to the parties through their counsel for re-adoption of their briefs of Argument before another panel of this Court and to file further written addresses on:
“Whether the two (2) grounds of Appeal in the Notice and Grounds of Appeal filed on 31st January, 2017 do arise from the ratio decidendi in the judgment of the lower Court.”

On 4th June, 2020, the parties through their respective counsel re-adopted their briefs of Argument alongside with their further addresses before another panel of this Court as follows:

Appellant’s further address was filed on 30th March, 2020. It is settled by Livinus Udofia Esq.
2. 1st Respondent’s further address was filed on 4th June, 2020. It is settled by Nsikak Udo – Assang Esq.
3. 2nd and 3rd Respondent’s further address was filed on 4th June, 2020. It is settled by Iquo Abia Esq.

Learned counsel for the Appellant submitted on the question posed by the Court that the first thing the trial Court handed out on page 282 – 283 of the record was declaration that Plaintiff (Appellant) was not duly selected as the Clan head of Eket Offiong Clan in Eket. The trial Court further declared “that it was wrongful of the 2nd Defendant (1st Respondent) to disqualify the 2 village heads from voting to select their clan head before giving them the opportunity to be heard and when their nomination did not amount to voting in law being the recognized way of selecting a clan head under the TRL (Traditional Rules Law).”

Learned counsel for the Appellant submitted rather curiously that if the disqualification was a nullity it means that their vote ought to have counted and ought to have been

declared the winner because the 2 (two) disqualified village heads voted or intended to vote for the Appellant. The trial Court refused to accredit the two votes of the Appellant.

He added that the exhibits have shown the dates of the selection and the dates on the exhibits will prevail over the oral evidence given by the Appellant (Plaintiff) who testified as PW1 at the trial Court.
Appellant counsel insisted that the appeal was filed against the final order of the Court.

Learned counsel for the 1st Respondent submitted on the question posed by this honourable Court that the grounds of appeal do not flow from the ratio in the judgment as captured in pages 278 – 282 of the records. That the Court below found from the evidence before her that no selection ever took place that saw the Plaintiff/Appellant emerge as the clan head of Eket Offiong Clan. It would then be wrong for the lower Court to uphold and credit the void votes to the Appellant.

He submitted that it is trite law that ground of appeal must be based on the ratio decidendi of the decision being challenged, else it will be incompetent. He referred to the cases of

Adewumi vs. Adebest Tele Communications (Nig.) Ltd. (2013) ALL FWLR (pt. 703) 1954; Alabi vs. Kwara State Polytechnic (2013) ALL FWLR (pt. 683) 1926.
He urged us to hold that the appeal is incompetent.

Learned counsel for the 2nd and 3rd Respondents also made submissions on the question posed by this honourable Court. He submitted that it is settled law that grounds of appeal must arise or flow or tied to the judgment of the Court appealed against. In fact, that a ground of appeal needs to be against the ratio decicendi of a judgment. Foundationally, for a ground of appeal to be valid and competent, it must be related to the decision appealed against and should constitute a challenge to the ratio of the decision on appeal.

He submitted that apart from basing the grounds of appeal on the text of the decision appealed against, the Supreme Court in the case of Akpan vs. Bob (2010) LPELR – 376 (SC) held that the grounds of appeal can also arise in the following situations.
a) From the procedure under which the claim was initiated.
b) From the procedure under which the decision was rendered.
c) From the extrinsic factors, such as issue

of jurisdiction of a Court from which the appeal emanates.
d) From commissions or omissions by the Court from which appeal emanates in either refusing to do what it ought to do or doing what it ought to do in overdoing the act complained of.

Learned counsel for the 2nd and 3rd Respondents reasoned that in the instant case the two grounds of appeal do not fall under any of the above situations.

The pertinent question said counsel is whether the grounds of appeal in the instant case flowed from the ratio decidendi of the judgment. The answer he said is in the negative – a resounding No. That on page 276 of the Record of Appeal, the learned trial judge categorically found that there was no election on 3rd August, 2012 by virtue of Exhibit 1B. He referred to page 178 lines 13 – 19 of the record thus:
“What transpired as recorded against his interest and claim is that there was no election on 3rd August, 2012. It means therefore that he was neither elected on 27th July, 2012 nor on 3rd August, 2012. He has thus failed to prove the fact of his election. If there was no election, then the nullification of the votes of the two

chiefs had no effect on victory or defeat of the Plaintiff in the polls when none was held.”

Learned counsel for the 2nd and 3rd Respondent submitted from the foregoing excerpts from the judgment of the lower Court, there was no election whatsoever either on 12th July, 2012 or 3rd August, 2012. Hence, the ground of appeal should basically aim at addressing the fact of election. On ground one, even if the disqualified votes are accorded the Appellant, it will amount to efforts in futility since there was no election. On Ground Two, he submitted, it is immaterial whether the disqualification was done before or after the election, since there was no election in the first place.

He concluded that the two grounds of appeal canvassed by the Appellant do not flow from the ratio of the decision appealed against and therefore incompetent. He added that any issue distilled from an incompetent ground of appeal is itself incompetent and must be struck out. He referred to the cases of A.C.B. vs. Integrated Dimensional System Ltd. (2012) LPELR 9710 (SC); Gov. of Nasarawa State & ORS. Vs. SHEWAZA & ORS. (2017) LPELR – 44032 (CA) page 6. He

urged us to strike out the two grounds of appeal as incompetent.

In deciding the competence or otherwise of the Appellant’s two grounds of appeal as flowing from or deriving from the ratio decidendi of the judgment of the Court below, the Appellant’s grounds of appeal together with their particulars as contained on pages 287 – 288 of the Record of Appeal are reproduced thus:
GROUNDS OF APPEAL:
GROUND ONE
The learned trial judge erred in law when he held that it was wrongful for the 2nd Defendant to disqualify the two village heads from voting to select their clan head but refused to accord their votes to the Plaintiff who was given the votes before disqualification.
PARTICULARS OF ERROR
1. The Court after holding that the two village heads ought to have had their votes counted should have accorded the votes to the Plaintiff whom they voted.
2. A vote that was wrongly cancelled is valid and ought to be accorded to the party it was given.
GROUND TWO
The learned trial judge erred in law when he held that the disqualification of the two village heads and their votes was not done after election at the

2nd Defendant’s meeting.
PARTICULARS OF ERROR
1. 2nd Defendant conducted election to determined (sic) how many village heads supported the Plaintiff and the 1st Defendant.
2. The two village heads were disqualified after Plaintiff had emerged the winner of the election by two votes thus foisting an artificial tie at the election.
3. The President of the 2nd Defendant then cast the deciding vote in favour of the 1st Defendant.

A careful perusal of the ratio decidendi of the judgment of the Court below starting from page 277 of the Records would reveal that the Plaintiff’s/Appellant’s suit was dismissed for lack of proof of the fact of election itself. Thus, as pointed out by the Respondents counsel what the Appellant ought to question in his appeal would have been the fact of the election itself, in other words whether in fact an election held on a particular date as he alleged. The dismissal of the Appellant’s case on the ground that there was in fact no election or that the Appellant did not prove as alleged that there was an election either on 12th July, 2012 or 3rd August, 2012 forcloses issues of

disqualified votes to be accorded to the Appellant.

The Appellant’s two grounds of appeal as could be seen above relate to disqualification of two village heads disqualification of votes to the Appellant. Logically there could be no disqualification of voters or votes when the fact of election itself was not proved. It is clear therefore that none of the Appellant’s two grounds of appeal addresses the question of the fact of election which was the bases on which the Appellant’s claims were dismissed.
The Appellant’s grounds of appeal do not emanate from the ratio decidendi of the judgment appealed against.

(Pt. 703) 1954; Alabi vs. Kwara State Polytechnic (2013) ALL FWLR (pt. 683) 1926.
Furthermore, since the Appellant’s grounds of appeal are not derived from the ratio decidendi of the judgment of the Court below, the issues formulated from those said grounds of appeal are also incompetent. Any issue distilled from an incompetent ground of appeal is itself incompetent and ought to be struck out alongside any argument based thereon. This is because it is the grounds of appeal that provides the legal basis for any attack on the judgment or ruling of a trial Court. It is the grounds of appeal that give life, meaning and content to the issues raised in the appeal for determination. See John Holt Ventures Ltd. vs. Oputa (1996) 9 NWLR (Pt. 470) 101 at 113; Ononiwu vs. R. C. C. Ltd. (1995) 7 NWLR (Pt. 406) 214; Sadiku vs. A-G, Lagos State (1994) 7 NWLR (Pt. 355) 235; U.B.A. Plc. vs. A.C.B. (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 232; Ifabiyi vs. Adeniyi (2000) 5 SC 31 at 42; A. C. B. vs. Integrated Dimensional System Ltd. (2012) LPELR 9710 (SC); Governor of Nasarawa State & ORS. Vs. SHEWAZA (2017) LPELR – 44032 (CA).

In the instant case, the Appellant’s two grounds of appeal do not flow from the ratio decidendi of the judgment of the Court below and are therefore incompetent. Relatedly, issues formulated from incompetent grounds of appeal are also incompetent.
The question posed for determination by this honourable Court is resolved against the Appellant.
The appeal is incompetent and it is accordingly struck out.
Parties to this appeal are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: Having been privileged to have read in draft the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA.
I wholly agree with the reasoning as well as the conclusion reached therein. An incompetent appeal cannot generate any result. That being so, the appeal is struck out.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had a preview of the judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion that where the grounds of appeal do not flow from the ratio decidendi of the judgment of the Court, same are incompetent. Likewise, the issues formulated from incompetent grounds of appeal are also incompetent.

I too strike out the incompetent appeal.

Appearances:

Livinus Udofia, Esq. For Appellant(s)

Nsikak Udo Assang, Esq. for 1st Respondent
Iquo Abia, Esq. for 2nd and 3rd Respondent For Respondent(s)