PEOPLE’S DEMOCRATIC PARTY & ANOR v. JIDOU L. SEBASTINE & ANOR (2015)

PEOPLE’S DEMOCRATIC PARTY & ANOR v. JIDOU L. SEBASTINE & ANOR

(2015)LCN/7796(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of March, 2015

CA/J/330M/2014(R)

RATIO

PRACTICE AND PROCEDURE: A STAY OF EXECUTION; THE PURPOSE OF A STAY OF EXECUTION
The purpose of a stay of execution, proceedings or injunction upon a dismissal of an appeal is to preserve the res and to maintain the status quo pending the determination of the appeal by the Supreme Court. The Court of Appeal and the Supreme Court can exercise that jurisdiction pending the determination of the appeal by the Supreme Court. In Shodeinde & Ors. vs. The Registered Trustees of the Ahmadiyya Movement-In-Islam (1980) 1-2 SC 163, Idigbe, JSC held at page 181-182 as follows:
“What then is the position regarding an application for an order of injunction pending appeal? It does not appear to me that the position can be any different. I find considerable support for this view in that portion of the judgment of Cotton, L.J., in Polini vs. Gray (Ibidem at page 446) which I set out earlier between the marginal capital letters “K”-“L” and “N”-“O”. As the learned Judge said, there is “no difference in principle between staying the distribution of a fund to which the Court has held the plaintiff not to be entitled, and staying the execution of an order by which the Court has decided that a plaintiff is entitled.” I find it difficult, therefore, to subscribe to the view that a Court becomes stripped of its jurisdiction to control the proceedings to the extent of preserving the subject matter of litigation, should it become necessary to do so, as soon as the Court dismisses the proceedings before it. An application for an injunction to restrain proceedings or actions under a judgment under appeal pending the determination of the appeal appears to me to be an original motion which the Court whose judgment is under appeal can entertain.” per. JOSEPH TINE TUR, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER A DOCUMENT IS FILED WHEN IT IS DEPOSITED IN THE REGISTRY OF THE COURT WITH THE PROPER OFFICER CONFERRED WITH THE RESPONSIBILITY OF RECEIVING SUCH DOCUMENT OR PROCESS FOLLOWED BY THE PAYMENT OF THE PRESCRIBED FEES AND WHETHER ON THE HAPPENING OF SUCH AN EVENT IT BECOMES A PUBLIC DOCUMENT IN THE CUSTODY OF THE COURT

A document is filed when it is deposited in the Registry of the Court with the proper officer conferred with the responsibility of receiving such document or process followed by the payment of the prescribed fees. See Mohammed vs. Musawa (1985) 3 NWLR (Pt.11) 83 at 95. On the happening of such an event it becomes a public document in the custody of the Court.

APPEAL: NOTICE OF APPEAL: WHETHER A NOTICE OF APPEAL MUST BE SUPPORTED BY AT LEAST A VALID GROUND OF APPEAL
A Notice of Appeal must be supported by at least a valid ground of appeal. Where no leave is sought and obtained to appeal from the judgment of the Court of Appeal to the Supreme Court, what is before the Court is a mere paper or document. See Erisi vs. Idika (1987) 9-11 SC 170 at 190; Amudipe vs. Arijodi (1978) 2 LRN 128; Atanda vs. Olarewaju (1988) 4 NWLR (Pt.89) 394 and Lamai vs. Orbih (1980) 5-7 SC 28. Therefore, no appeal is pending before the Supreme Court against the judgment of the Court of Appeal. per. JOSEPH TINE TUR, J.C.A.

PRACTICE AND PROCEDURE: STAY OF EXECUTION; WHEN CAN A STAY OF EXECUTION BE GRANTED

A stay of execution can be granted only where there is a pending appeal or pending certain legal consequences. See Olayinka vs. Olusanmi (1971) 1 NMLR 277 and Okoya vs. Santili (1990) 3 SCNJ 83 at 114. per. JOSEPH TINE TUR, J.C.A.

Justice

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAH Justice of The Court of Appeal of Nigeria

Between

Justice

1. PEOPLE’S DEMOCRATIC PARTY
2. FABIAN FITSOEMAppellant(s)

AND

1. JIDOU L. SEBASTINE
2. PLATEAU STATE INDEPENDENT ELECTORAL COMMISSIONRespondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): The People’s Democratic Party held her primaries on 26th November, 2013 to vote in a candidate to contest the general elections into the Kalong Council Ward in Shendam Local Government Council of Plateau State. At the close of voting the 1st respondent emerged with the highest number of votes cast at the primaries. Nevertheless, his name was substituted by the Peoples Democratic Party in favour of the 2nd appellant/applicant whom it was alleged was not a contestant at the primaries. Being aggrieved the 1st respondent proceeded to the High Court of Justice, Jos, Plateau State by originating summons to challenge the decision of the 1st appellant/applicant. On 24th February, 2014, Mann, J., of the High Court of Justice, Plateau State holden at Jos delivered judgment in favour of the 1st respondent holding at page 147 lines 4-20 of the printed record as follows:

“Section 23(1) of the PLASEC Law, 2011 forbids a political party from substituting any candidate for any election whose name has been submitted to the Commission under Section 21 of the Law. The case of PDP vs. Sylva (supra) at page 121 paragraphs “G”-“H” is relied on to submit that that law should be respected by this Court.

My short answer to the forgoing argument is that the said Section 23(1) of the PLASEC Law, 2011 forbids a political party, not a Court, from substituting a candidate. At any rate, this Court has the jurisdiction to grant the reliefs sought. Section 87(9) of the Electoral Act, 2010 makes the plaintiff’s grievance Justiceable. Issue 2 is therefore hereby resolved in favour of the plaintiff and against the 1st and 3rd defendants.

Finally, the three questions for determination in this suit are answered and resolved in favour of the plaintiff and against the 1st and 3rd defendants. The plaintiff is entitled to all the four reliefs sought by him and reproduced at the beginning of this judgment. See Gassol vs. Tutare (supra). That shall be the judgment of this Court.
SGD: Justice D.G. Mann, Judge, 24/02/2014.”

The three questions his Lordship determined in favour of the 1st respondent read as follows:

“1. Whether given paragraph 5(b) of the 1st defendant’s guidelines for the conduct of the party primaries, the plaintiff who scored the highest number of votes is not the winner of the primary election of the 1st defendant to be entitled to be given Certificate of Return of 1st defendant and to be presented to the 2nd defendant to contest the general election into Kalong Ward Councillorship seat.

2. Whether given paragraph 5(g)(1) of the 1st defendant’s guidelines for the conduct of the party primaries, the plaintiff’s name alleged not to be in the register after having been screened and cleared by the 1st defendant to contest the primary election of the 1st defendant is a ground for disqualifying him after having been declared the winner of the Ward primary election.

3. Whether given paragraph 5(b) of the 1st defendant’s guidelines for the conduct of its primary elections, the 3rd defendant who did not stand for election on the date of the election and not declared a winner of the Kalong Ward primary election is entitled to be given Certificate of Return by the 1st defendant to be submitted to the 3rd defendant to be recognized and presented for the general election.”

Aggrieved by the judgment of the learned trial Judge, the 2nd appellant/applicant appealed to the Court of Appeal, Jos on 24th February, 2014. On 3rd December, 2014 the appeal was dismissed. This Court held at page 63 lines 4 to page 69 lines 1 to 10 of the judgment as follows:

“I hereby direct that the leader of the Legislative Arm of Shendam Local Government Area Council shall swear in the 1st respondent within seven days of the delivery of this judgment failing which the Deputy Chief Registrar of the Court of Appeal, Jos Judicial Division, Plateau State is to enforce this judgment in accordance with the provisions of Order 19 rule 5 of the Court of Appeal Rules, 2011.

On the whole the appeal fails and is dismissed with N50,000.00 costs in favour of the 1st respondent and N50,000.00 costs to the 2nd respondent.”

The Leader of the Shendam Local Government Legislative Council has till date, failed, refused or neglected to comply with the judgment of the Court of Appeal. There is no evidence that the Leader has lodged an appeal against the decision to the Supreme Court. 2nd applicant brought this motion on 18th December, 2014 praying for the following reliefs:

“1. AN ORDER staying the execution of all the orders granted by way of reliefs contained in the judgment of the Court of Appeal in Appeal No. CA/J/97/2014: Peoples Democratic Party & 1 Or. vs. Jidou Sebastine & 1 Or. delivered on 3rd December, 2014, pending the determination of the appellants/applicants’ appeal to the Supreme Court of Nigeria.

2. AN ORDER OF INJUNCTION restraining the 1st and 2nd respondents herein to this application, whether by their selves, their agents, privies or assigns or any other person acting through them or howsoever, from giving effect to, or otherwise seeking the enforcement of the judgment of the Court of Appeal in Appeal No. CA/J/79/2014: Peoples Democratic Party & 1 Or. vs. Jidou Sebastine & 1 Or. delivered on 3rd December, 2014, pending the determination of the appellants/applicants’ appeal to the Supreme Court of Nigeria.

3. AN ORDER OF INJUNCTION restraining the Leader of the Shendam Legislative Council of Shendam Local Government Council or any other person by whatsoever name or howsoever called from giving effect to the judgment of the Court of Appeal in Appeal No. CA/J/79/2014: Peoples Democratic Party & 1 Or. vs. Jidou Sebastine & 1 Or. delivered on 3rd December, 2014, pending the determination of the appellants/applicants’ appeal to the Supreme Court of Nigeria.”

The grounds upon which this application is predicated are that 2nd applicant filed an appeal to the Supreme Court on 8th December, 2014 (Exhibit “1”). Paragraph 6-12 of the grounds for asking for stay reads as follows:

“6. There is need to stay the execution and/or restrain respondents from executing the judgment of this Honourable Court to enable the appellants/applicants adequately prosecute their appeal to the Supreme Court.

7. The appellants/applicants’ Notice of Appeal attached as Exhibit “1” to this application raises substantial and arguable issues of law which are recondite.

8. The appellants/applicants’ affidavit in support of this application discloses special and exceptional circumstances warranting the grant of the application.

9. The execution and enforcement of the judgment and orders of this Honourable Court would have the effect of rendering the appellants/applicants’ appeal nugatory, and foist a situation of helplessness on the Supreme Court in the event that the appellants’/applicants’ appeal succeeds.

10. If the judgment of the Court of Appeal is enforced, the 1st appellant/applicant (as a registered political party) will be deprived of its right to choose a validly registered, nominated and qualified candidate to occupy the office of Councilor representing Kalong Ward of Shendam Local Government Council of Plateau State.

11. By Section 15 and 17 of the Court of Appeal Act, 2004, Order 7 rule 1 of the Court of Appeal Rules, 2011, this Honourable Court is empowered to stay the execution of all the orders made on 3rd December, 2014, granted by way of reliefs contained in the judgment delivered on 3rd December, 2014.

12. This is a case where this Honourable Court can exercise its discretion in favour of the grant of this application.”

The application is verified by an affidavit deposed to by Lawal Ahmadu, Litigation Clerk in the Chambers of S.G. Odey and Associates representing the 2nd applicant. Exhibit “1” is the purported Notice of Appeal bearing the stamp of the Court of Appeal, Jos dated 8th December, 2014. The application for stay of execution and the purported Notice of Appeal shows that the People’s Democratic Party is the 1st applicant/appellant and Fabian Fitsoem is the 2nd appellant/applicant.

The 1st respondent swore to a counter-affidavit on 12th December, 2014 as follows:

“3. That the averments contained in paragraphs 3(f-l) and 4-6 of the supporting affidavit are not true and I further aver as follows:

(a) That before this appeal was determined; the 1st appellant itself had issued me with a Return Certificate hereto annexed as Exhibit “JS1”. Hence nothing to stay as that was my claim against it at the lower Court.

(b) That the 2nd respondent herein equally issued me with a Return Certificate as the Winner of the election into Kalong Ward. It is hereto annexed as Exhibit “JS2”.

(c) That the Certificate of Return erroneously issued the 2nd appellant has been withdrawn by the 2nd respondent. Annexed is the 2nd respondent’s letter dated 12th March, 2014 as Exhibit “JS3″.

(d) That the letter was not challenged even at the Election Tribunal hence the 2nd appellant lacks the locus to bring this application.

(e) That there is no res that can be destroyed as the 2nd appellant is an illegal occupant of the seat of Councilor to Kalong Ward as his return had long been withdrawn.

(f) That the salaries and allowances that the 2nd appellant has been collecting from the Local Government are illegal and that is what he wants the Court to protect. The Court should order him to return all the monies collected from the government from the date of withdrawal of his return.

(g) That I am the one to be greatly prejudiced as my people have no legal representative in the Legislative Arm of Shendam Local Government Council and I am deprived of my legitimate earnings.

4. That I am further informed by F.O. Shaibu, Esq. of Counsel in the office on the 11th December, 2014 at 2:30pm the information which I believe to be true as follows:

(a) That there is no special circumstance to warrant grant of stay as the Court is only invited to support illegality by granting stay.

(b) That there is nothing recondite about the appellants’ grounds of appeal.

(d) That there is no res to be destroyed to render the outcome of the appeal nugatory as the 2nd appellant has no pedestal to say this in the first place.

5. That it is in the interest of Justice to dismiss this application and enforce the order of the Court as the balance of convenience is on the side of not granting as it will prejudice me the 1st respondent.
6. That I depose to this affidavit in good faith and in accordance with the Oaths Act, Cap. 01, Laws of the Federation of Nigeria, 2004.”

There is no further affidavit from the 2nd applicant/appellant to counter the facts deposed by the 1st respondent against this application. An affidavit or counter-affidavit meant for use in Court stands as evidence and must as near as possible, conform to oral evidence admissible in Court, so held Uwaifo, JSC in Bamaiyi vs. The State (2001) FWLR (Pt.46) 956 at 978 paragraphs “G”-“H”. The purpose of deposing or swearing to an affidavit or counter-affidavit is to provide evidence to prove or disprove facts upon which each party relies upon at the trial or hearing. See Banque DeL’Afrique Occidental vs. Alhaji Baba Sharfadi & Ors. (1963) NNLR 21. Documents referred to in an affidavit or counter-affidavit forms part of the application. See South Eastern States Newspaper Corporation & Ors. vs. Edet Asuquo Anwara (1975) 5 U.I.L.R. (Pt.1) 106. Documentary exhibits are to be used to evaluate affidavit evidence. See Nwosu vs. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97. There is no further affidavit from the applicant to counter-mand or countervail the 1st respondent’s sworn affidavit that before the substantive appeal was determined the 1st applicant/appellant had issued the 1st respondent the Certificate of Return (Exhibit “JS1”) and the 2nd respondent also issued a Return Certificate (Exhibit “JS2”) declaring 1st respondent the winner of the primaries held on 26th November, 2013 to contest the Kalong Council Ward in Shendam Local Government Council, Plateau State, and that the Return Certificate erroneously issued the 1st applicant by the 2nd respondent had been withdrawn since 12th March, 2014 (Exhibit “JS3”) but that has not also been denied by the 1st and 2nd applicants/appellants, I am of the humble opinion that the facts deposed in the counter-affidavit are deemed admitted. See Nwanganga vs. Military Governor of Imo State & Ors. (1987) 3 NWLR (Pt.59) 185 at 193 and Ajomale vs. Yaduat (No.2) (2003) FWLR (Pt.182) 1913. Nevertheless, the applicant continues to flout the orders of the 2nd applicant, the 2nd respondent, the judgment of the High Court of Justice, Plateau State and of the Court of Appeal on the lame excuse that he has appealed to the Supreme Court of Nigeria. Section 17 of the Court of Appeal Act, 2004 provides thus:
“17. An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.”
In Vaswani Trading Company vs. Savalakh Company (1972) 12 SC 77, Coker, JSC held at page 81 lines 24 to page 83 lines 1 of the judgment as follows:
“When the order or judgment of the lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal, and indeed any Court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen, L.J., in the Annot Lyle (1886) 11 page 114 at page 116). We take it that the word “special” in the con Justice is not used in antithesis to the words “common” or “normal” for that would be tantamount to pre-judging the appeal on a determination of an application for a stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. All rules governing stay of actions or proceedings, stay of executions of judgment or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the Court, and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expenses of the other or of the Court to assume that rule.”
At the oral hearing of this appeal I asked the learned Counsel to the applicant whether the records of the Court below and of this Court had been compiled and transmitted to the Supreme Court (See Shittu Ogunremi vs. Dada (1962) 1 All NLR 663 at 668) but received “NO” as an answer.
The purpose of a stay of execution, proceedings or injunction upon a dismissal of an appeal is to preserve the res and to maintain the status quo pending the determination of the appeal by the Supreme Court. The Court of Appeal and the Supreme Court can exercise that jurisdiction pending the determination of the appeal by the Supreme Court. In Shodeinde & Ors. vs. The Registered Trustees of the Ahmadiyya Movement-In-Islam (1980) 1-2 SC 163, Idigbe, JSC held at page 181-182 as follows:
“What then is the position regarding an application for an order of injunction pending appeal? It does not appear to me that the position can be any different. I find considerable support for this view in that portion of the judgment of Cotton, L.J., in Polini vs. Gray (Ibidem at page 446) which I set out earlier between the marginal capital letters “K”-“L” and “N”-“O”. As the learned Judge said, there is “no difference in principle between staying the distribution of a fund to which the Court has held the plaintiff not to be entitled, and staying the execution of an order by which the Court has decided that a plaintiff is entitled.” I find it difficult, therefore, to subscribe to the view that a Court becomes stripped of its jurisdiction to control the proceedings to the extent of preserving the subject matter of litigation, should it become necessary to do so, as soon as the Court dismisses the proceedings before it. An application for an injunction to restrain proceedings or actions under a judgment under appeal pending the determination of the appeal appears to me to be an original motion which the Court whose judgment is under appeal can entertain.”
I do not know what the applicant wants this Court to preserve pending appeal when his political Party and the Plateau State Independent Electoral Commission have all derecognized him as a candidate to contest the forth-coming general elections into the Kalong Ward of Shendam Local Government Council, Plateau State, and this has been affirmed by the High Court of Justice and the Court of Appeal. In Martins vs. Nicannar Food Company Ltd. & Anor. (1988) 3 SCNJ (Pt.2) 246 the Supreme Court held at pages 250-251 per Nnamani, JSC thus:
“In his book Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria First Edition, paragraph 44.29, page 535, Dr. T.A. Aguda, noted a few other applicable principles elicited from the cases over the years. These include:-
(a) The chances of the applicant on appeal. If the chances are virtually nil, then a stay may be refused. Vaswani Trading C. vs. Savalakh and Co. (1972) 12 SC 77; Wey vs. Way (1975) 1 SC 1; Olusesan Shogo vs. Latifu Musa (1975) 1 NMLR 133, W.A.C.A; Odufaye vs. Fatoke (1975) 1 NMLR 222.
(b) The nature of the subject matter in dispute whether maintaining the status quo until a final determination of the appeal in the case will meet the Justice of the case Dr. T.O. Dada vs. The University of Lagos and Ors. (1971) 1 U.L.R. 344; Utilgas Nigerian & Oversea Co. Ltd. vs. Pan African Bank Ltd. (1974) 10 SC 105.
(c) Whether if the appeal succeeds, the applicant will not be able to reap the benefit of the judgment on appeal. See Wilson vs. Church (No.2) (1879) 2 Ch.D. 454, 458.
(d) Where the judgment is in respect of money and costs whether there is a reasonable probability of recovering these back from the respondent if the appeal succeeds. Lawrence Ogobegu Ebegbuna vs. Janet Omotunde Ebegbuna (1974) 3 W.S.C.A. 23.
(e) Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting his appeal. Nwajekwu Emefisi and Ors. vs. Michael Mbanugwo and Ors. (1970-71) 1 E.C.S.L.R. 100.”
The Court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issues being in status quo until the legal issues are resolved.”
In Okafor & Ors. vs. Nnaife (1987) 9-10 SCNJ 63 the High Court of Justice adjudged the defendants to be trespassers on the land in dispute. They appealed to the Court of Appeal against the judgment followed by an application for stay of execution pending appeal. The Court of Appeal dismissed the application. On a further appeal to the Supreme Court, Oputa, JSC held at page 70 lines 20-35 of the judgment as follows:
“Now since the radical and primary role of Courts is to do Justice in the atmosphere of fairness, will it be fair to the respondent in this appeal to allow the losing defendants/appellants “to continue cutting down and selling the economic trees on the land” adjudged by the trial Court not to belong to them simply because their grounds of appeal contain some arguable point of law? I suppose not. Justice and fairness both demand much more than this. They also demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different. The case of Balogun vs. Balogun (supra) may appropriately apply to divorce cases, but I am afraid it will work considerable hardship in land cases where as in the case on appeal a party adjudged a trespasser, in an application for stay pending appeal, is allowed to continue his trespass, during that pendency, simply because his grounds of appeal (in the main appeal) contain an arguable point of law.”
Aniagolu, JSC supported the above views by holding at page 72 lines 17 to 24 of the judgment as follows:
“What the appellants who have been found not to be the owners of the land in dispute want of this Court, in effect, is for the Court to lend its authority to the appellants, for them to continue devastating the land in dispute by being allowed to continue cutting down and selling the economic trees on the land while the owner of the land- the respondent – sits back and watches, helplessly, the fruits of his judgment being denied and deprived him. That will be Justice inverted. I will not be party to such an inversion.”
Nnamani, JSC also held at page 73 lines 10-25 that:
“It would seem to me that the appellants seek a stay of execution of the injunction which in effect would allow them continue to exploit the economic trees and put tenants on the land.
The principles on which this Court will grant a stay of execution have been settled in several decisions of this Court. See Vaswani Trading Company vs. Savalakh & Company (1972) 12 SC 77 at 82; Kigo (Nigeria) Ltd. & Anor. vs. Holman Bros. (Nigeria) Ltd. (1980) 5-7 SC 60 at page 74 and lately Obeya Memorial Specialist Hospital & Anor. vs. The Attorney-General of the Federation and 1 Or. To get a stay of execution, moreso in the circumstances of this case, the applicants have to show special or exceptional circumstances. I see no such circumstances from the appellants’ affidavit. May be as the Court of Appeal observed, the appellants ought to have pressed for accelerated hearing of their appeal against the High Court judgment in the substantive matter before the Court of Appeal.”
In the Military Governor of Lagos State & Ors. vs. Chief Emeka Odumegwu Ojukwu & Anor. (1986) 2 SC 277 the appellants refused to obey the orders of the High Court but proceeded to appeal to the Court of Appeal and prayed for stay of execution pending appeal. The application was dismissed. The appellants proceeded to the Supreme Court and asked once again for stay of execution pending the determination of the appeal. Eso, JSC called the act of the Lagos State Government’s refusal to comply with the orders of the High Court and the Court of Appeal “this dreadful situation” (page 295). Thereafter his Lordship proceeded to state at page 295 lines 24 to page 296 lines 1-2 as follows:
“I think it is a very serious matter for anyone to flout a positive order of a Court and proceed to taunt the Court further by seeking a remedy in a higher Court while still in contempt of the lower Court. It is more serious when the act of flouting the order of the Court, the contempt of the Court, is by the executive”
If the Supreme Court would unleash judicial anger against the (1) Military Governor of Lagos State (2) The Police Commissioner of Lagos State and (3) The Attorney-General of Lagos State, I lack the language to employ against the 2nd applicant in this circumstance for asking for stay of execution pending the determination of his purported appeal in the Supreme Court without evincing an intention to comply with the directives of the Peoples Democratic Party, the Plateau State Independent Electoral Commission, the judgment and orders of the High Court of Justice and of the Court of Appeal. I adopt the words of Eso, JSC as mine. At page 298 to 299 of the judgment, Uwais, JSC (as he then was) also held as follows:
“When we dismissed this application on 16th December, 1985, I expressed my concern on the failure of the applicants to comply with the order made by the Court of Appeal that the possession of the house in dispute should be restored to the respondent. I think I should still stress that it is a matter of grave concern that the Military Government of Lagos State should be seen to disregard a lawful order issued by a Court of law. If government treats Court order with levity and contempt the confidence of the citizen in the Courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If any-one should be wary of orders of Court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”
Oputa, JSC concurred at page 299 lines 21 to page 300 lines 1-20 of the judgment thus:
“I am in complete agreement with him that the applicants’ prayer for a stay of execution should be refused. I also agree with his sound reasoning and valid conclusions. But as the issues raised in this application affect radically and fundamentally the concept and practice of the rule of law in our country; the protection of the individual citizen from an abuse of executive power; and the role of our Courts in the preservation of law and order in our society; it is in my humble view, necessary that the fullest expression be given to the views of individual Justices of this Court at least to further emphasise the points so ably made in the lead reasons for ruling.
Admittedly, the country is now governed by military regime but it is to the external credit of all the military governments in Nigeria in general and the present military regime in particular, that each pledged itself to observe and to be bound by the basic principles of the rule of law. This is highly commendable for where the rule of law is forced to abdicate the rule of force is automatically enthroned. And this is why, and where, certain features of this application are rather disturbing.”

Let met examine the purported Notice and Grounds of Appeal filed by the appellants against the judgment of the Court of Appeal to the Supreme Court. They read as follows:

“GROUND ONE:
The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court and directed the Leader of the Shendam Legislative Council of Shendam Local Government Council of Plateau State to swear in the 1st respondent as the Councilor representing Kalong Ward of Shendam Local Government Council in the absence of cogent evidence that the 1st respondent is qualified ab initio to contest the 1st appellant’s primary election held on 26th November, 2014, which holding has occasioned a miscarriage of Justice.

PARTICULARS OF ERROR
1. By virtue of the combined provisions of Section 67(e) of the Plateau State Independent Electoral Commission Law, 2011, and paragraphs 2(A), (G) and (J); 3(J) and 7(v) of the Peoples Democratic Party Guidelines for the conduct of primaries for the Local Government Council Elections (Exhibit “J7”, only a person who is a member of a political party shall be qualified to contest for office of Councilor either in a primary election organized by a political party or at the general election organized by the Plateau State Independent Electoral Commission.

2. Only a duly registered financial member of the 1st appellant whose name is contained in the membership register of the 1st respondent is qualified to seek for election into the office of Councilor of a Ward in any Local Government Council in Plateau State.

3. There is uncontroverted affidavit evidence in the appellants’ further affidavit filed on 4th February, 2014; the appellants’ counter affidavit filed on 4th February, 2014; and uncontroverted documentary evidence amongst which is Exhibit “PDP1” (i.e. a copy of the Peoples Democratic Party, Kalong Ward Membership Register which is attached to the 1st and 3rd appellants’ Counter Affidavit to the Originating Summon) in proof of the fact that the 1st respondent is not a validly registered member of the 1st appellant.

4. In view of the absence of the 1st respondent’s name in Exhibit “PDP1”, the 1st respondent is ineligible to contest in the 1st appellant’s primary election ab initio and consequently does not qualify as an aspirant and/or candidate under the law.

5. The 1st appellant is empowered to and indeed rightly disqualified the 1st respondent upon discovery that the 1st respondent’s name is not contained in Exhibit “PDP1” in compliance with the provisions of the 1st appellant’s Guidelines and the provisions of the Plateau State Independent Electoral Commission Law, 2011.

GROUND TWO:
The learned Justices of the Court of Appeal erred in law when they omitted, neglected or failed to consider, address and/or determine the fundamental issues of facts and law raised by the appellants in their appellants’ brief of argument; and this occasioned a miscarriage of Justice.

PARTICULARS OF ERROR:
1. The 1st respondent’s registration No.6799659 contained in Exhibit “J1” is at variance with the registration numbers contained in the Peoples Democratic Party, Kalong Ward Membership Register (Exhibit “PDP1”).

2. The number of registered members of the 1st appellant in Kalong Ward in Exhibit “PDP1” who constitute the number of persons who are eligible to vote in the primary of the 1st appellant are only 753 (Seven Hundred and Fifty Three) as against the 1, 090 (One Thousand and Ninety) votes the 1st respondent alleged to have scored.

3. The appellants proved that the purported “election report” attached to the 1st respondent’s originating summons and marked as Exhibit “J6” lacked probative value.

4. Exhibit “J5” attached to the 1st respondent’s originating summons predates Exhibit “J10” also attached to the plaintiff’s originating summons. Exhibit “J10” supports the appellants’ case.

5. Exhibit “J10” made on 16th December, 2013, is a review of the reports/complaints concerning the Councillorship Election held in Kalong Ward of Shendam Local Government Council by the Plateau State Executive Committee of the 1st appellant.

6. From the combined provisions of paragraphs 2(A)-(J); 3(A)-(J); 4(A) and (B) and 7(v) of the 1st appellant’s Guidelines for the conduct of primaries for the Local Government Council Elections, the 1st appellant is empowered to disqualify and/or withdraw the provisional certificate issued to any aspirant in respect of the Local Government Council Elections.

7. In view of the uncontroverted depositions contained in the appellants’ Counter-affidavit and exhibits attached thereto, particularly the Register of Members marked Exhibit “PDP1″ placed before the Honourable Court, the 1st respondent’s suit lacks merit.

8. The learned Justices of the Court of Appeal failed to properly evaluate the totality of the evidence placed before them which has occasioned a miscarriage of Justice.

9. The learned Justices of the Court of Appeal failed to consider the threshold issues raised in the appellants’ Notice of Appeal and brief of argument before dismissing their appeal.

GROUND THREE:
The judgment is against the weight of evidence.”

Grounds and 4 and 5 of the grounds for bringing this application read together with paragraphs 3(d) and (e) of the affidavit of Lawal Ahmadu, Litigation Clerk are to the effect that the Notice of Appeal (Exhibit “1”) was filed in the Registry of the Court of Appeal. That is to say the original Notice of Appeal is an official document filed in the Registry of this Court. Exhibit “1” bears the stamp of the Court of Appeal, Jos and is dated 8th December, 2014. If the original Notice of Appeal was filed in the Registry of this Court, it follows that Exhibit “1” is a photocopy of the original Notice of Appeal filed in the Registry of this Court on 8th December, 2014.

In the case of a Notice of Appeal to the Supreme Court alleged to have been filed in the Registry of the Court of Appeal, Jos, how would the appellants/applicants prove that assertion?
In S.O. Adeyefa & Ors. vs. Bello Bamgboye (2013) 2 SCNJ 198, Ariwoola, JSC held at page 218 to 219 of the judgment as follows:
“In the instant case on hand, the applicants in their affidavit in support of the application had asserted that the three documents being sought to be tendered now in this Court had earlier been tendered before the Customary Court in suit No.27/83. The reason why they were not available for use before the trial High Court was inadvertence of the applicants from collecting the documents then from the Customary Court. But that because the Customary Court had lost the original documents during its movements from one place to another, the documents were not available to be used before the two Courts below. They claimed that the Customary Court recently made available the photocopies of the said documents now being sought to be tendered.
There is no doubt, these three documents being sought to be tendered are public documents said to be in custody of public officers of the Customary Court. The law is clear on this issue, that every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of the prescribed legal fees, with a certification at the foot of the document, that it is a true copy of its original. The certification expected to be endorsed on the said copy shall be dated and subscribed by such officer with his name and his official title and shall be sealed. The copies of such document so certified are referred to as certified copies admissible in Court. See Section 104 of the Evidence Act. Justus Nwabuoku & Ors. vs. Francis Onwordi & Ors. (2006) 8-9 SCM 247; (2006) SC (Pt.111) 03; (2006) LPELR 2082.
I have closely looked at the three documents attached as Exhibit “P10”, “P11” and “P12″ being sought to be used before this Court. They are photocopies of public documents but curiously there is no indication whatsoever that they emanated or were derived from the Customary Court which has the custody of the original. They are simply not certified copies of the original. As a result, they are simply not credible, to say the least. I am therefore not in the slightest doubt that this application failed to meet the circumstances pursuant to which this Court can consider allowing the applicants to tender the three documents being sought to tender as further or additional evidence before this Court.”
Exhibit “1” is not a certified true copy of the original document filed in the registry of the Court of Appeal, Jos. No officer of the Registry certified same as emanating from the custody of the Registry. There is no evidence that when Exhibit “1” was deposited in the Registry of the Court below, how much was paid as the prescribed fee for obtaining the copy. Exhibit “1” is a worthless and spurious document.
In Anatogu vs. Iweka II (1995) 8 NWLR (Pt.415) 547, Uwais, JSC (as he then was) held at page 571 paragraph “E” that there is no provision of Evidence Act which specifically applies to the production of the original copies of public documents (See Section 39 and 111(1)-(2) of the Evidence Act, 1945. At page 572 paragraphs “C”-“E” his Lordship conceded that only certified copies are to be produced. The practice of the Court is to evaluate the weight to attach to documentary exhibits. See Tangale Traditional Council vs. Fawu (2002) FWLR (Pt.117) 1137 at 1164 paragraphs “G”-“E” and Ogun vs. Asemoh (2002) FWLR (Pt.128) 1328 at 1341 paragraphs “E”-“G”; Garaba vs. Kwara Investment Co. Ltd. (2005) All FWLR (Pt.252) 469 at 478-479; Zein vs. Geidam (2004) All FWLR (Pt.237) 457 at 482 paragraphs “C”-“D” and Etiko vs. Aroyewun (1959) 4 FSC 129.

None of the grounds of appeal had challenged the jurisdiction of the Court below in entertaining the originating summons nor that the Court of Appeal lacked the competence to have entertained the appeal. None of the three grounds of appeal has raised any recondite issue for determination by the Supreme Court. In Collins CoBuild Advanced Learner’s Dictionary, 2006 edition, page 1198 the author wrote that the word “recondite” occurs where, “Areas of knowledge or learning are difficult to understand, and not many people know about them.”
Alternatively, the recondity of a ground or point of law “must involve an area of law not known by many people and difficult to understand”. See Cambridge Advanced Learner’s Dictionary, 2003 edition, page 1042. I have not been shown which of the grounds of appeal are “recondite” and I see none. See Balogun vs. Balogun (1969) 1 All NLR 349.

Rather, all the grounds of appeal involves questions of facts or mixed law and facts, nevertheless the applicant did not seek leave of this Court to appeal to the Supreme Court contrary to the provisions of Section 233(2)(a)-(f) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
A Notice of Appeal must be supported by at least a valid ground of appeal. Where no leave is sought and obtained to appeal from the judgment of the Court of Appeal to the Supreme Court, what is before the Court is a mere paper or document. See Erisi vs. Idika (1987) 9-11 SC 170 at 190; Amudipe vs. Arijodi (1978) 2 LRN 128; Atanda vs. Olarewaju (1988) 4 NWLR (Pt.89) 394 and Lamai vs. Orbih (1980) 5-7 SC 28. Therefore, no appeal is pending before the Supreme Court against the judgment of the Court of Appeal.

For all these reasons the application for stay of execution/injunction pending the determination of a purported appeal that has no valid grounds lacks merit and is dismissed with N20,000.00 cost to the 1st respondent and N20,000.00 cost to the 2nd respondent respectively.

IBRAHIM SHATA BDLIYA, J.C.A.: I have been privilege to read in draft the ruling just delivered by my learned brother, TUR, JCA. I cannot but to agree in toto with the comprehensive and erudite ruling, the reasons and conclusion for which I do hereby adopt as mine in dismissing the application. I abide with the order as to costs in the lead ruling.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in advance the ruling prepared by my learned brother, JOSEPH TINE TUR, JCA just delivered. I agree with his reasoning and conclusions arrived at after due consideration of all issues raised for determination in the application.

The application has no merit and should be dismissed and I also endorse the order made as to costs.

Appearances

Joshua John, Esq. with Mrs. A.M. Umar, Esq.; Frank Daniel, Esq. and Miss R.C. Nwankwo, Esq.For Appellant

AND

F.O. Shaibu, Esq. with L.L. Fwangyil, Esq.
Mrs. C.O. Okoh, Esq.For Respondent