DR. TONY UKAM, OON, JP V. ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC) & ANOR (2012)

DR. TONY UKAM, OON, JP V. ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC) & ANOR

(2012)LCN/5568(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of July, 2012

CA/C/246/2011

RATIO

PROCEDURE: PURPOSE OF A PRELIMINARY OBJECTION

The purpose of a preliminary objection is to foreclose the hearing of the appeal and for this reason it should be taken and determined first before going into the merits of the appeal. See Okafor vs. Nwude (1999) 7 SC (pt. 1) 106; Nigeria Navy vs. Garrick (2006) 4 NWLR (Pt.696) 69; Goji vs. Ewete (2001) 15 NWLR (Pt. 736) 273. PER ISAIAH OLUFEMI AKEJU, J.C.A

APPEAL: RIGHT PROCEDURE FOR CHALLENGING THE RECORD OF APPEAL

The right procedure for challenging the record of appeal is to first of all impeach the record as it is not open to an appellate court to speculate as to what transpired at the trial court. See: Ogli Oko Memorial Farms Ltd vs. N. A. C. B. Ltd (2009) All FWLR (pt. 419) 400; Ogidi vs. State (2005) 5 NWLR (Pt. 918) 286, 2005 All FWLR (Pt. 251) 202. PER ISAIAH OLUFEMI AKEJU, J.C.A

APPEAL: DUTY OF AN APPELLANT THAT INTENDS TO MAKE USE OF GROUNDS NOT CONTAINED IN THE NOTICE OF APPEAL

The law therefore is that where the appellant (or any party) intends to make use of grounds not contained in the notice of appeal, but filed as additional grounds, such party must seek and obtain the leave of court, and where he neglects to do so, the grounds of appeal are incompetent. See N.A.C.B. Ltd. vs. Salem Farms Ltd. (2005) All FWLR (pt. 320) 114. In Fagunwa vs. Adibi (2004) All FWLR (Pt. 228) 340, Tobi JSC stated the position as follows at page 354:

“The law is elementary that where a party seeks to make use of additional grounds, he must seek leave of court … Where he fails to do so, the additional grounds are incompetent and the court will so treat them. I have searched in vain in the case file and I cannot see where this court granted leave to the appellants to file additional grounds. And what is more, counsel for the appellants did not call our attention to where this court granted the appellants leave to file additional grounds. PER ISAIAH OLUFEMI AKEJU, J.C.A

APPEAL: WHETHER AN INCOMPETENT GROUND OF APPEAL CAN GIVE BIRTH TO A COMPETENT ONE

The law is that an incompetent ground of appeal cannot give birth to a competent issue for determination and only issues that have been formulated from competent grounds of appeal are competent and valid for consideration in an appeal. See Aja vs Okoro (1991) 7 NWLR (pt. 203) 260; African Petroleum vs. Owodunni (1991) 1 NWLR (Pt. 210) 391. PER ISAIAH OLUFEMI AKEJU, J.C.A

APPEAL: NATURE OF A GROUND OF APPEAL

A ground of appeal is consisted of the error of law or fact alleged by an Appellant as the defect in a judgment appealed against and relied upon to set the judgment aside. Metal construction (WA) Ltd vs. Migliance (1990) 1 NWLR pt 126 page 299, PDP vs KSIEC (2006) 3 NWLR pt 968 page 565.

Grounds of appeal are the reasons for considering a decision of court wrong. The purpose of the grounds is to isolate and accentuate, for attack, the basis of the reasoning of the decision being challenged. Saraki vs. Kotoye (1992) NWLR pt 264 page 156.

Parties are bound by their grounds of appeal and are not at liberty to argue grounds, which are not related to the judgment appealed against. Saraki vs. Kotoye (supra). PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

DR. TONY UKAM, OON, JP – Appellant(s)

AND

1. ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC)

2. PEOPLES DEMOCRATIC PARTY (PDP) – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A (delivering the Leading Judgment): The appellant, Dr. Tony Ukam, OON, JP commenced Suit No. FHC/CA/CS/93/2010 through the Originating summons filed at the Federal High Court, Calabar on 23rd December, 2010 wherein he claimed as follows against the respondents as the defendants:

1. A Declaration that the constitutional immunity for Governors in Nigeria does not extend to any Aspirant or Contestant standing or vying for any Political or Elective office in Nigeria.

2. A Declaration that the immunity clause which shielded Senator Liyel Imoke from investigations and prosecution for his financial fraud and complicity in the energy sector of the country as the then Minister for Power does not avail him as a contestant of an elective office.

3. AN Order of the court compelling the Defendants to investigate, screen and present to the court facts of the financial irregularity and embezzlement of Senator Liyel Imoke as a Minister of Power and Energy in Nigeria.

4. An Order stopping and, or disqualifying Senator Liyel Imoke from seeking any Political office in Nigeria whatsoever and howsoever.

The following questions were set down for determination:

“1. Whether immunity for o Governor is immunity for s contestant.

2. Whether an Aspirant or Contestant who is a suspect or a Criminal or who has a case to answer before the EFCC, SS5 Police, etc can be shielded by the immunity clause by reason only that he is immuned from investigations and prosecutions as A GOVERNOR.

3. Whether Senator Liyel Imoke, Governor of Cross River State has any moral or legal justification to seek re-election or election into any Political office in Nigeria when he has not purged himself of the criminal allegations hanging on his neck.

4. Whether what is the essence or rationale of the party’s “screening” of Aspirants/Contestants if it “jumps” over or pay blind eyes to “criminals and criminalities”

The affidavit of 27 paragraphs deposed to by the appellant in support of the Originating summons was also filed on 23rd December, 2010. The 1st respondent upon being served with the Originating summons and supporting affidavit filed a Notice of Preliminary Objection on 13/12/2011 pursuant to Section 6 (6) (A) of the Constitution of the Federal Republic of Nigeria 1999, and Order 16 Rules 2, 3 and 4 of Federal High Court (Civil Procedure), Rules 2009 and later filed the 1st Defendant’s Counter Affidavit on 4/2/2011. The grounds of 1st respondent’s objection are that:

“1. The court locks the jurisdiction to compel the 1st Defendant/Objector by a judicial review to perform duties in respect of which the 1st Defendant has vested and unfettered discretion.

2. The suit does not disclose any cause of action against the 1st Defendant.

3. The entire application is incompetent.

In reaction to the 1st respondent’s counter affidavit, the appellant filed a Further And Better Affidavit on 14th February, 2011, and filed also on the same date a Reply to 1st Defendant/Objector’s Notice of preliminary objection.

After hearing the parties’ learned counsel in respect of the preliminary objection, the learned trial judge, in the ruling delivered on 3rd March, 2011 dismissed the appellant’s action on the ground that same disclosed no reasonable cause of action and lacked merit” Dissatisfied with the decision of the trial court the appellant filed a Notice And Grounds of Appeal on 31st March, 2011 with three grounds of appeal. In pursuance of the appeal, the appellant filed the Appellant’s Brief on 28th October, 2011 and upon service thereof the 1st Respondent’s Brief of Argument was filed on 13th December, 2011.

The 2nd Respondent’s Brief of Argument filed on 14th March, 2012 was deemed on 3rd April, 2012 upon application by the 2nd respondent.

The appellant filed Reply Briefs to the 1st Respondent’s Brief on 27/1/2012 and the 2nd Respondent’s Brief on 16th April, 2012 respectively.

In the Appellant’s Brief prepared by Prof. Tony Ukam, OON, JP, the following issues were formulated for determination:

1. Whether the Ruling of the trial court dismissing the entire suit in the face of other unresolved issues and parties, was justified in the circumstance.

2. Whether the immunity clause contained in section 308 of the 1999 Constitution (as amended) extends to Aspirants or Contestants vying for political offices.

3. Whether the Plaintiff/Appellant’s question “C” and “D” contained in the Originating summons for determination ore academic and hypothetical questions.

4. Whether the Plaintiff/Appellant’s case at the trial was stricto sensu that of judicial review.

Meanwhile on 13/12/2011., the 1st respondent filed a Notice of Preliminary Objection in respect of this appeal pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011. The objection which relates to the competency of the additional grounds of appeal filed by the appellant on 5th October, 2011 is premised upon the ground that the appellant filed the additional grounds of appeal without obtaining the leave of this Court.

This preliminary objection was argued on pages 4-6 of the 1st Respondents’ Brief after which the 1st respondent formulated the following two issues for determination:

1. Whether the trial court was right when it held that it lacked jurisdiction to entertain the suit and thereby dismissed it.

2. Whether the trial court was right when it held that the 1st respondent could not be compelled by an order of mandamus or judicial review to perform duties in respect of which the 1st respondent has unfettered discretion.

At page 5 of the 2nd Respondent’s Brief, a Notice of Preliminary Objection was given alleging the incompetence of the appeal on the grounds that:

“1. Between the 3rd day of March, 2011 when the lower court gave its ruling and the 5th day of October, 2011 when the appellant filed his additional Grounds of Appeal is more than the requisite time on appellant can file additional grounds of appeal without leave of court.

2. The Appellant has failed to seek leave of this Honourable Court to file and argue the additional grounds of Appeal.

3. The Appellant’s issues for Determination Nos. 2, 3 and 4 and the arguments canvassed thereon by the Appellant in the Appellant’s Brief of Argument do not emanate from the valid Grounds of Appeal filed on March 31st, 2011 and should therefore be discountenanced and struck out.

4. The Record of Appeal entered in the Registry of this Honourable Court in this Appeal No. CA/C/246/2011 is incomplete by reason of the fact that there is no page 6 of the judgment of the lower court being appealed against as can be deduced from pages 83 and 84 of the record of appeal.”

In the argument of the preliminary objection the 1st respondent stated the issue for determination to be:

Whether the Notice of Appeal filed by the Appellant is competent owing to the fact that the Appellant Amended his Notice of Appeal by filing Additional Grounds of Appeal without the leave of this Honourable Court.

The learned counsel cited Order 6 Rule 15 of the Court of Appeal Rules, 2011 and contended that the filing of the Notice of Appeal on 31st March 2011 and the additional grounds on 5th October 2011 at the trial court is improper because after filing the notice of appeal, the whole appeal is already before this court and the appellant would have applied for leave to file additional grounds of appeal. It was argued that the consequence is that no valid appeal exists since the filing of the additional grounds constituted an amendment of the Notice of Appeal.

Reliance was placed on the cases of Bayero vs. Mainassara & Sons Ltd (2006) 8 NWLR (pt. 982) 391 at 418 and Ohajunwa vs. Obelle (2008) 3 NWLR (pt. 1073) 52 at 74-75. It was submitted that the additional grounds of appeal which was filed at the registry of the trial court is incompetent and should be struck out

The 2nd respondent argued ground 4 of the objection and grounds 1, 2 and 3 together. The court was urged to invoke Section 122 (2) (m) of the Evidence Act 2011 and take judicial notice of all the processes in the file.

The contention of the 2nd respondent on ground 4 is that the ruling of the trial court in the record of appeal is incomplete as page 6 thereof is omitted, End this omission has rendered the record incapable of being used to determine the appeal, citing Ekpemupolo vs. Edremod (2009) 8 NWLR (Pt. 1142) 166; Nwana vs. FCDA (2007) 11 NWLR (Pt. 10440 59; Agbareh vs. Mimra (2008) 2 NWLR (Pt.1071) 378.

On grounds 1, 2 and 3, it was contended that the period within which an appellant is to give notice of appeal as stipulated by Section 25 (2) (a) of the Court of Appeal Act, 2004 is three months from the date of the decision appealed against, while Order 6 Rule 4 of Court of Appeal Rules 2011 allows amendment to grounds of appeal only with the permission of court. The additional grounds of appeal filed by the appellant without the leave of court is of no moment and cannot be argued; Tahir vs. Bank of the North Ltd, (2007) All FWLR (Pt. 388) 1072; Tam vs. Ameh (1992) 1 NWLR (Pt. 217) 305; Olanrewaju vs. Ogunleye (1997) 1 SCNJ 144. It was also contended that the additional grounds which were filed more than 5 months from the date of judgment and without leave of court are incompetent and should be struck out with all the issues distilled therefrom together with the argument canvassed thereon which have also become incompetent as issues must be formulated from valid or competent grounds of appeal. Nyambi vs. Osadim (1997) 1 SCNJ 182.

The court is urged to strike out issues 2, 3 and 4 in the appellants brief and the arguments rendered thereon as having emanated from incompetent grounds of appeal.

The appellant’s Reply to the Preliminary objection of the respondent is on pages 3-5 of the Appellants Reply Brief to Respondent’s Brief.

The appellant contended that he did not amend his Notice of Appeal as there is a difference between an “Amendment” and “Additional Grounds” and there is also a difference between “Additional Grounds” and Additional Grounds with Notice.”

It was further contended that the notice of the additional grounds of appeal was given in the notice of appeal at a time when the records of appeal had not been compiled. The additional grounds are neither new nor fresh but arose from the ruling and the grounds are incorporated in the record of appeal. It was submitted that the 1st respondent’s preliminary objection is an attempt to challenge the record of proceedings, an approach that is unconscionable; Bahir vs. Audu (1999) 5 NWLR (Pt. 603) 433.

The appellant contended that having stated in paragraph 3 of the original Notice of Appeal that additional grounds of appeal will be filed upon receipt of a copy of the ruling appealed against the subsequent “Additional Grounds” were incorporated by reference in the original Notice of Appeal. Texaco Nig. Plc vs. Relinde (2002) FWLR (Pt. 94) 143; Seatrade Groningen BV vs. Awoloya (2002) FWLR (Pt. 93) 2059; Ikem vs. Isowieren (2010) 1 NWLR (Pt. 1174) 147.

The court is urged in the alternative to consider all the issues relevant to this appeal whether or not they are contained in the original Notice of Appeal or the Additional Grounds of appeal, the court can exercise its omnibus power of doing justice without limiting itself to the notice and grounds of appeal.

The appellant’s Reply to the 2nd Respondent’s Objection is on pages 1 to 4 of the Appellant’s Reply Brief to 2nd Respondent’s Brief.

It is contended by the appellant that the 2nd respondent who appeared at the trial but filed no process has no legal or moral basis for raising a preliminary objection in this matter; UAC vs. Macfoy (1951) All ER 1169.

On ground one of the objection, the appellant contended that there is a presumption of regularity of record of proceedings and a party who intends to challenge the correctness of the record has to swear affidavit challenging the record and serve same on the judge or registrar of the trial court; Ukwuyok vs. Ogbulu (2010) 5 NWLR (Pt.1187) 316; Ngige vs. Obi (2005) 14 NWLR (Pt. 999) 1; Idakula vs. Richards (2001) 1 NWLR (Pt. 693) 111; Agbeotu vs. Brisibe (2005) 10 NWLR (Pt. 932) 1.

On grounds 1, 2 and 3, the appellant adopted his response to the 1st respondents’ objection and argued further that the notice of the additional grounds and the reasons therefor were furnished and filed within time.

The unassailable, facts relating to the respondents’ preliminary objection are that whereas the appellant filed the notice originating this appeal on 31st March, 2011, the Additional grounds of Appeal was filed on 5th October, 2011, an interval of about 6 months, and there is no record of this court showing that the appellant ever sought and/or obtained the leave of this court to file the Additional Grounds of Appeal.

The contention of the appellant is that he did not amend the original notice of appeal but the additional grounds were incorporated by reference in the original notice. It is however observed that the Additional Grounds filed on 5th October, 2011 are numbered as grounds 4, 5 and 6 as addition to the grounds 1, 2 and 3 contained in the original notice and grounds of appeal filed on 31/3/2011.

The 2nd respondent’s argument on ground I of the objection is that the record of appeal is not complete in that there is omission of part of the ruling of the lower court. The right procedure for challenging the record of appeal is to first of all impeach the record as it is not open to an appellate court to speculate as to what transpired at the trial court. See: Ogli Oko Memorial Farms Ltd vs. N. A. C. B. Ltd (2009) All FWLR (pt. 419) 400; Ogidi vs. State (2005) 5 NWLR (Pt. 918) 286, 2005 All FWLR (Pt. 251) 202.

This ground of objection fails.

The respondents have mutually canvassed the impropriety of the filing of additional grounds by the appellant on 5th October, 2011 without the leave of this court. This court cannot, in search for justice jettison simple and straight forward provisions of its own rules. Order 6 Rule 4 of the Court of Appeal Rules 2011 provides the answer to this objection as follows:

“4. The Appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just.

In the circumstances, I will discountenance the additional grounds 6 to 11 purportedly argued in the brief. I know of the procedure where counsel, in anticipation of seeking leave of court to use additional grounds, takes them in their brief, and at the hearing seek leave. I do not know of a procedure where a party uses additional grounds in his brief without leave of court.”

It is noted in the same manner that the appellant in the instant appeal failed to seek and obtain the leave of this court before filing the additional grounds and also failed to seek leave to rely on the issues generated from them in his argument in the brief.

The consequence of this is that the additional grounds numbered as grounds 4,5 and 6 are incompetent. I therefore discountenance them and they are struck out. The law is that an incompetent ground of appeal cannot give birth to a competent issue for determination and only issues that have been formulated from competent grounds of appeal are competent and valid for consideration in an appeal. See Aja vs Okoro (1991) 7 NWLR (pt. 203) 260; African Petroleum vs. Owodunni (1991) 1 NWLR (Pt. 210) 391.

The appellant in this appeal has raised 4 issues from 6 grounds of appeal three out of which are invalid and already struck out. It is not indicated by the appellant which ground has produced each of the issues, and this court will embark on speculation, conjecture or guesses so as to ascertain this, and it is not within the province of a court to speculate.

The effect of the foregoing is that the issues placed before this court by the appellant are discountenanced and struck out. The respondents have no cross appeal, and the issues formulated by the respondents also from the incompetent grounds must suffer the same fate. They are discountenanced and struck out.

The effect of the foregoing is that this court is left with no or any valid issue to consider in this appeal. The objections raised by the 1st and 2nd respondents are sustained on this ground.

The appeal fails and it is accordingly dismissed. I make no order as to costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Isaiah Olufemi Akeju, JCA.

I agree with his conclusion leading to the final decision of dismissing this appeal.

Parties are bound by their grounds of appeal and are not at liberty to argue grounds, which are not related to the judgment appealed against. Saraki vs. Kotoye (supra).

Where the grounds of an appeal are incompetent, the appeal will fail naturally as in this appeal. For this and the fuller reasons in the lead judgment, I also dismiss this appeal.

JOSEPH TINE TUR, J.C.A.: I have read in advance the judgment delivered by my Lord, I.O. Akeju, JCA and I agree with his reasoning and conclusion. I have nothing to add than to also dismiss the appeal.

Appearances

Prof. Tony UkamFor Appellant

AND

Agbo Sophia Abuh (Mrs,) for the 1st Respondent.

Barth A. Izato Esq. for the 2nd Respondent.For Respondent