ALL PROGRESSIVE CONGRESS (APC) & ANOR v. CHIEF CYRIL ABEYE OGODO & ORS
(2019)LCN/12555(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/B/541/2018
RATIO
COURT AND PROCEDURE: GROUND OF APPEAL
“In my view, the appellants rightly did not in the notice of appeal ex facie style their grounds of appeal as grounds of law. Even if the appellants had labelled or titled their grounds of appeal as ‘grounds of law’ or ‘error in law’; I cannot arrive at a different decision because the examination of the grounds, as analysed above, shows that the grounds are not of law alone. The law is settled that whether a ground of appeal raises an issue or a question of law does not depend on the label attached to it by an appellant. See S.U. Ojemen & Ors. v. William O. Momodu II & Ors. (1983) 1 SC 173; (1983) 1 SCNLR 188; Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 NWLR (Pt. 67) 718; Ejiwunmi v. Costain (W.A.) PLC (1998) 12 NWLR (Pt. 576) 149 and Barrister Franc Fagah Utoo v. All Progressives Congress &Ors. (2018) 12 NWLR (Pt. 1634) 507.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
COURT AND PROCEDURE: WHERE THE GROUND OF APPEAL SHOULD ARISE
“The law, as settled by many decisions of the Supreme Court, is that a ground of appeal must arise from the decision or judgment appealed against. See Florence Achonu v. Oladipo Okuwobi (2017) 14 NWLR (Pt.1584) 142. However, it is not sufficient that a ground of appeal arises from or relates to a decision or judgment appealed against. A ground of appeal should relate to and challenge the ratio decidendi of the decision appealed against. See Rt. Hon. Michael Balonwu & Ors. v. Governor of Anambra State & Ors. (2009) 18 NWLR (Pt. 1172) 13; Nigeria Deposit Insurance Corporation v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 800) 107; Mrs. Ganiat Yetunde Elias & Anor. v. Eco bank Nigeria PLC (2017) 2 NWLR (Pt. 1549) 175 and K.R.K. Holdings Nigeria Limited v. First Bank of Nigeria Limited (2017) 3 NWLR (pt. 1552) 326 at 342, per Nweze, JSC” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVE CONGRESS (APC)
2. COMRADE ADAMS OSHIOMOLE
[The National Chairman, All Progressive Congress (APC),
for himself and on behalf of members of the National
Working Committee (APC)] Appellant(s)
AND
1. CHIEF CYRIL ABEYE OGODO
[Chairman, All Progressive Congress (APC), Delta State,
for himself and on behalf of members of the Executive
Committee of APC, Delta State]
2. CHIEF MOSES ADJARHO
[Chairman, All Progressive Congress (APC),Ethiope East Local Government Area, Delta State for himself and on behalf of members of the Executive Committee of APC in the 25 Local Government Areas of Delta State]
3. MR. KAYODE JIMOH
[Chairman, All Progressive Congress (APC), Ward 5, Sapele Local Government Area Delta State, for himself and on behalf of members of the Executive Committee of APC in all the 270 Wards in Delta State]
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. PROPHET JONES ERUE
[Purported Chairman of the Delta State Chapter of the All Progressive Congress (APC) (Struck out by an order of Court
made pursuant to an oral application by learned senior counsel
for the appellants)] Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(Delivering the Leading Judgment):
On the 26th of September, 2018, the 1st, 2nd and 3rd respondents, in this Court, instituted an action against the appellants and the 4th and 5th respondents in Suit No. FHC/ASB/CS/76/2018. The suit was commenced by way of a writ of summons in the Federal High Court, Asaba Judicial Division, holden at Asaba. The reliefs sought by the 1st, 2nd and 3rd respondents in their statement of claim are:
1. A declaration that the 1st plaintiff is the authentic, legal and validly elected chairman of the 1st defendant in Delta State.
2. A declaration that the Executive Committee headed by the 1st plaintiff as chairman is the authentic, legal and validly elected Executive Committee of the 1st defendant in Delta State.
3. A declaration that the 2nd plaintiff and other members of all the Executive Committees of the 1st defendant in the 25 Local Government Areas of Delta State whom he represents herein are the authentic, legal and validly elected chairman and members of the Executive Committees of the 1st defendant in the 25 Local Government Areas of Delta State.
4. A declaration that the 3rd plaintiff and other members of all the Executive Committees of the 1st defendant in the 270 Wards of the 1st defendant in the 25 Local Government Areas of Delta State whom he represents herein are the authentic, legal and validly elected chairman and members of the Executive Committees of the 1st defendant in the 270 Wards of the 25 Local Government Areas of Delta State.
5. A declaration that the only authentic, legal and validly elected Local Government and State delegates are those elected during and at the Ward and Local Government Congress wherein the 2nd and 3rd plaintiffs were elected as Ward and Local Government Executive committee members.
6. A declaration that the purported inauguration, swearing in, recognition, and/or appointment of the 4th defendant by the 2nd defendant as purported chairman of the 1st defendant in Delta State is null, void and of no effect whatsoever.
7. A declaration that any and every action purportedly taken, initiated, or carried out by the 4th defendant as Chairman of the 1st defendant in Delta State following his purported inauguration, swearing in, recognition and/or appointment by the 2nd defendant as Chairman of the 1st defendant in Delta State is/are null, void and of no effect whatsoever.
8. An Order of permanent injunction restraining the 1st and 2nd defendants by themselves, their agents, servants, workmen and/or privies from recognizing, dealing with or otherwise interacting with any person(s) other than the plaintiffs herein as members of the Executive Committee of the 270 Wards, 25 Local Government Areas and the State Executive Committee of the 1st defendant in Delta State.
9. An Order of permanent injunction restraining the 1st and 2nd defendants and/or their servants, agents, privies or assigns from recognizing or dealing with any person(s) other that the plaintiff herein for the purpose of the primary elections of the defendant coming up on the 29th day of September, 2018, 2nd and 4th days of October, 2018 or any other date to which the primaries may be scheduled to elect candidates for House of Assembly, National Assembly and Governorship elections in Delta State on the platform of the 1st defendant in the 2019 general elections.
10. An Order of permanent injunction restraining the 4th defendant and members of the purported Executive Committee of the 1st defendant which he heads as purported chairman of the 1st defendant from holding themselves out, parading themselves as members of the Executive Committee of the 1st defendant in Delta State.
11. An Order of permanent injunction restraining the defendant from recognizing or dealing with any person whatsoever other than the plaintiffs herein as the authentic, legal and validly elected members of the Executive Committees of the 1st defendant in the 270 Wards and 25 LGAs of Delta State and the State Executive Committee members of the 1st defendant in Delta State.
12. An Order of permanent injunction restraining the 3rd defendant from recognizing, dealing with and/or accepting any person(s) as a candidate for the House of Assembly, National Assembly and Governorship elections on the platform of the 1st defendant in Delta State in the 2019 general elections other than those elected in a primary wherein the plaintiffs are recognized as the legal and validly elected executive committee members of the 1st defendant in the 270 Wards, 25 Local Government Areas of Delta State and the Executive Committee members of the 1st defendant in Delta State.
13. An Order directing the 1st and 2nd defendants to recognize, interact with, deal with, and accept the plaintiffs as the only validly and legally elected members of the Executives Committees of the 1st defendant in Delta State at the Wards, Local Government Areas, and the State levels of the party in Delta State.
The 1st, 2nd and 3rd respondents also filed a motion on notice on 26/09/2018 for orders of interlocutory injunction.
On 16/10/2018, the appellants, as the 1st and 2nd defendants in the trial Court, filed a motion on notice seeking an order striking out and/or dismissing the suit for want of jurisdiction/competence, an order dismissing the suit for being an abuse of Court process and an order dismissing the suit on the ground that the plaintiffs (now 1st, 2nd and 3rd respondents) lack locus standi to file the suit.
On 17/10/2018, the 4th respondent (Independent National Electoral Commission – INEC) filed a notice of preliminary objection in which it asked the trial Court to strike out and/or dismiss the suit for being incompetent and an abuse of judicial process.
On 02/11/2018, the 4th respondent filed its statement of claim and a motion on notice in which it is seeking an order setting down for hearing points of law raised in paragraphs 2 and 3 of its statement of defence.
It is on record that on 17/10/2018, the trial Court made some orders, including an order that the appellants? preliminary objection and other objections, if filed, would be taken with the substantive suit and the case was adjourned to 01/11/2018 and 02/11/2018 for hearing.
On the 1st day of November, 2018, when the case was called for hearing, the learned Senior Advocate of Nigeria representing the appellants referred to their motion challenging the jurisdiction of the Court and prayed ‘that the Preliminary Objection be heard despite the Order of Court’. Learned counsel for the 1st, 2nd and 3rd respondents objected to the application of the learned Senior Advocate of Nigeria and the trial Court delivered a bench ruling in which it refused the appellants’ oral application and adjourned the case to 13/11/2018 for hearing of the preliminary objections and the substantive suit. This appeal is against the said decision delivered on 01/11/2018.
The appellants’ notice of appeal contains 4 grounds and the notice spans pages 1463 to 1468 of the record of appeal.
The appellants’ brief was filed on 22/11/2018 while the 1st, 2nd and 3rd respondents filed a joint brief on 09/01/2019. It is on record that the 1st, 2nd and 3rd respondents incorporated and argued a preliminary objection in the said joint brief. The appellants filed a reply brief to the 1st, 2nd and 3rd respondents? brief on 14/01/2019. The 4th and 5th respondents did not filed any brief.
On 14/01/2019, before the appeal was argued, learned senior counsel for the appellants withdrew the appeal against the 5th respondent and his name was accordingly struck out.
At the hearing of the appeal, learned senior counsel for the appellants adopted and relied on the appellants? brief and appellants? reply. He urged the Court to overrule the preliminary objection of the 1st, 2nd and 3rd respondents and to allow the appeal. On the other hand, learned counsel for the 1st, 2nd and 3rd respondents adopted and relied on their brief and prayed the Court to uphold their objection and to dismiss the appeal.
I have read the briefs in this appeal and the preliminary objection of the 1st, 2nd and 3rd respondents; which will be taken first.
The first leg of the 1st, 2nd, and 3rd respondents? objection is that:
‘The proceeding of 1st November, 2018 upon which the Notice of Appeal is predicated does not constitute a decision or ruling of the Court upon which an appeal can lie as of right but by Leave of Court which was not sought and obtained in this case.
The Notice of Appeal filed by the appellant on 2nd November, 2018 cannot validly appeal against the ruling of 17/10/18 without seeking Leave or Extension of Time since that order was made over and above 14 days prescribed by the law.
The second arm of the objection is that:
‘The grounds of appeal contained in the Notice of Appeal filed by the appellant did not relate to the proceedings or Order made by the trial Court on 1st November, 2018 and hence does not arise from the decision of the Court appealed from.’
The substance of the arguments of the 1st, 2nd and 3rd respondents is the appellants ought to have obtained leave of Court before filing their interlocutory appeal against the decision delivered by the trial Court on 01/11/2018 by virtue of the provisions of Section 14 of the Court of Appeal Act, 2004.
The learned counsel for the 1st, 2nd and 3rd respondents also contended that none of the appellants? grounds of appeal is a complaint ?against the decision or ruling of the Court of 1/11/2018 complained of?. He argued that the grounds of appeal are therefore, incompetent and should be struck out.
In response to the objection, learned Senior counsel for the appellants submitted that – there is no need whatsoever for the appellants to obtain leave to file the appeal as erroneously contended by the 1st – 3rd respondentswhen same falls squarely within the province of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned Senior Advocate of Nigeria, representing the appellants, also contended that the grounds of appeal relate to ‘the decision of the trial Court to hear the appellants’ preliminary objection challenging its jurisdiction with the substantive suit’ and that the grounds are competent.
The bench ruling delivered by the trial Court on 01/11/2018 covers pages 1459 to 1461 of the record of appeal and since it is short, it is hereunder reproduced:
BENCH RULING
The Order of this Court made on the 17th of October, 2018 is that this matter will be given accelerated hearing.
The defendants were ordered to file their defence even though no date was given. It is imperative that the defence of the defendants ought to have been filed on or before today the 1st of November, 2018 in deference to the Order of this Court. Good enough the counsel to the 1st and 2nd defendants and other defendants were in Court when the Order was made.
The rules of procedure of Courts are an adjunct to the dispensation of justice. They cannot be relied upon to stultify justice. The rules of procedure are aids to the attainment of justice, to oil the wheels of justice to enable them roll and resolve smoothly to take justice to its logical and ultimate destination. The rules of procedure of Courts will cease to be aids when they take over and take charge, turning litigants and even the courts into slaves to the rules, thereby leading to the perpetration of more injustice in the process. The 3rd defendant in his affront to the Order of this Court made on 17th of October, 2018 relied heavily on the rules of Court which allows him 30 days to file his statement of defence not minding the circumstances of this suit and the order to give this case accelerated hearing.
It is worthy of note to state here that the 3rd defendant?s counsel was in court when this order was made and in the submission of all counsel, the issue of whether counsel requires 30 days to respond to the suit of the plaintiff was not mentioned.
It is my view that justice will not be slaughtered on the altar of speed and the principle of law which is cardinal to the administration of justice is that all parties ought to be heard.
Since the time is still running in favour of the 3rd and 4th defendants to file their defence to the plaintiffs? originating processes, this matter will be adjourned.
However, the order of this Court given on the 17th of October, 2018 is that all objections and the suit will be considered together.
The said order binds all parties until set aside by a Court of competent jurisdiction.
Therefore this matter is hereby adjourned to the 13th of November, 2018 for hearing of the preliminary objection of parties and the substantive suit. I so hold.
The above decision is clearly an interlocutory decision, since the rights of the parties, including those in respect of the appellants’ preliminary objection, were not by that decision finally disposed of. By its bench ruling, the trial Court merely stated that its order of 17/10/2018 ?binds all parties until set aside by a Court of competent jurisdiction’
The decision of the trial Court that the order it made on the 17th day of October, 2018 binds all parties until it is set aside by a competent Court is clearly an interlocutory decision and the appeal against it is an interlocutory appeal.
Learned senior counsel for the appellants argued that this appeal ?falls squarely within the province of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).?
For the sake of full understanding of the matter, the appellants? grounds of appeal are also hereby reproduced:
GROUND ONE
The learned trial judge of the Federal High Court erred in law when his Lordship ordered that both the preliminary objection of the appellant and the substantive suit be heard together despite the glaring abuse of Court processes before the Court.
PARTICULARS OF ERROR
a)The preliminary objection of the appellants touches on the jurisdiction of trial Court to hear and determine the suit of the 1st – 3rd respondents herein.
b) The suit of the 1st ? 3rd respondents herein was instituted at the trial Court by the writ of summons requiring a full trial and not by an originating summons which is determined by affidavit evidence.
c) The subject matter of the suit of the 1st ? 3rd respondents before the lower Court had already been determined by coordinate Court of competent jurisdiction, the Federal High Court holden at Abuja before His Lordship A. I. Chikere in Suit No. FHC/ADJ/CF/509/2018 on the 19th June, 2018.
d) The judgment of 19th June 2018 has not been set aside and it had not been appealed against.
e)The order of the honourable Court made against the 1st, 2nd, 3rd respondents and 1st appellant made in May in Suit No. A/91/2018 by the same Court is still extant and subsisting.
f) The Supreme Court in the case of Garuba vs. Omokhodion (2011) 15 NWLR (part 1269) 145 held that where preliminary objection touches on the jurisdiction of the Court, it is imperative on the Court to hear and determined the issue of jurisdiction first.
g) The judgment and order of the lower Court aforementioned in paragraph (e) above are judgment and order in rem.
GROUND TWO
The learned trial judge of the Federal High Court erred in law when His Lordship insisted that trial must proceed despite the application of the appellants challenging the jurisdiction of the Court to entertain the suit.
PARTICULARS OF ERROR
a)The appellants herein had earlier filed a motion on notice challenging the jurisdiction of the trial Court to entertain the suit of the 1st – 3rd respondent and had raised the objection timeously.
b)His Lordship ignored the application challenging the Court’s jurisdiction and ordered the hearing of the substantive suit.
c)That based on the judgment of 19th June, 2018; the 1st – 3rd respondents herein are not members of the executives of the 1st appellant in Delta State.
GROUND THREE
The learned trial judge of the Federal High Court erred in law when his Lordship held that the issue before the Court is a pre-election matter.
PARTICULARS OF ERROR
a)The subject matter of the suit before the lower Court pertain to the congress election of members of the executives of the 1st appellant in Delta State and not party primaries which are purely domestic and internal affair of the 1st appellant over which the Court has no jurisdiction.
b) The suit of the 1st – 3rd respondents is an intraparty matter over which the Court has no jurisdiction.
c) The claims and reliefs sought by the 1st – 3rd respondents before the lower Court are not justiciable, being matters that fall solely and squarely within the internal affairs of the 1st appellant.
d) The suit of the 1st – 3rd respondents which was instituted on 26th September, 2018, cannot said to be a pre-election matter, since the primaries of the 1st appellant herein were held on 2nd, 3rd and 5th October, 2018, after the institution of the 1st – 3rd respondents’ suit whilst the party congress were held on 5th, 12th and 19th May, 2018.
e)The pre-election matter arise only after the conduct of party primaries and same governed by Section 87 (10) of the Electoral Act 2010 (as amended)
f)The 1st – 3rd respondents herein were not aspirants in the primary election of the 1st appellant conducted on 2nd, 3rd and 5th October, 2018, especially in Delta State and can therefore not institute a pre-election action.
g)The 1st -3rd respondents were neither candidate nor aspirants at any time as envisage by Section 87 of the Electoral Act 2010 (as amended).
GROUND FOUR
The learned trial judge of the Federal High Court erred in law when His Lordship made pronouncement and set the matter down for hearing when the appellant and the 4th and 5th respondents have not exhausted with time allowed by the Rules of the Court to file their statement of defence, thereby abridging the time within which party can file their statement of defence without any prayer before the Court for such indulgence and when no date for same was indicated in the order of 17th October, 2018.
PARTICULARS OF ERROR
a)There was no formal application for abridgment of time before the honourable trial judge.
b)The learned trial judge unilaterally abridged the time without the inputs of the parties, thereby breaching the fundamental rights of the parties for hearing as envisaged by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
c)The order so made by the trial judge contained no date within which to file the defence.
As can be seen from the appellants? grounds of appeal and the particulars thereto, the grounds of appeal are not purely of law. At most, all the grounds of appeal are of mixed facts and law. The particulars supplied to each of the grounds of appeal involve matters of facts. For example, in ground 1 reference is made to a judgment of the Federal High Court delivered on 19/06/2018 in Suit No. FHC/ADJ/CF/509/2018 and another order made in May, in Suit No. A/91/2018. In ground 2, reference is also made to ‘the judgment of 19th June, 2018’.
In ground 3, reference is made to the alleged fact that ‘the primaries of the 1st appellant herein were held on 2nd, 3rd and 5th October, 2018, after the institution of the 1st – 3rd respondents’ suit whilst the party congresses were held on 5th, 12th and 19th May, 2018? and that the 1st – 3rd respondents ‘were not aspirants in the primary elections of the 1st appellant conducted on 2nd, 3rd and 5th October, 2018, especially in Delta State’. Similarly, the particulars to ground 4 buttress that it is a ground of mixed law and fact when the appellants alleged that ‘there was no formal application for abridgment of time before the honourable trial judge’.
From the particulars supplied by the appellants, all the grounds of appeal will require this Court to assess or investigate matters involving facts before applying the relevant law to them.
In my view, the appellants rightly did not in the notice of appeal ex facie style their grounds of appeal as grounds of law. Even if the appellants had labelled or titled their grounds of appeal as ‘grounds of law’ or ‘error in law’; I cannot arrive at a different decision because the examination of the grounds, as analysed above, shows that the grounds are not of law alone. The law is settled that whether a ground of appeal raises an issue or a question of law does not depend on the label attached to it by an appellant. See S.U. Ojemen & Ors. v. William O. Momodu II & Ors. (1983) 1 SC 173; (1983) 1 SCNLR 188; Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 NWLR (Pt. 67) 718; Ejiwunmi v. Costain (W.A.) PLC (1998) 12 NWLR (Pt. 576) 149 and Barrister Franc Fagah Utoo v. All Progressives Congress &Ors. (2018) 12 NWLR (Pt. 1634) 507.
This appeal, being an interlocutory appeal, the grounds of which involve not questions of law alone, does not fall within the provisions of Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, by the provisions of Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 14(1) of the Court of Appeal Act (as amended), leave of either the Federal High Court or the Court of Appeal ought to have been obtained by the appellants before this appeal could lie to this Court. In this case, no leave,either of the trial Court or this Court, was sought and obtained by the appellants and their notice of appeal filed on the 2nd day of November, 2018 is incompetent and it is liable to be struck out.
The law is certain and settled that a notice of appeal filed without obtaining leave, where leave ought to have been sought and obtained, is incompetent and it should be struck out. See Olowosoke v. Oke (1972) 11 SC 1; Akiwiwu Motors Ltd. v. Songonuga (1984) 5 SC 184; Barrister Franc Fagah Utoo v. All Progressives Congress & Ors. (2018) 12 NWLR (Pt. 1634) 507 and Inspector Dantalle Mohammed v. Kano State (2018) 13 NWLR (Pt. 1635) 85.
This appeal, in view of all that has been expressed and stated above, is liable to be struck out for being incompetent and it is hereby struck out.
In case the notice of appeal filed by the appellants is, for any reason, competent and it ought not to be struck out, the next question is whether the grounds of appeal flow from the decision appealed against.
Earlier in this judgment, the ruling appealed against and the appellants’ grounds of appeal had been reproduced. When the ruling appealed against is juxtaposed with the grounds of appeal, it is obvious to any discerning mind that the appeal does not constitute an attack on the ratio decidendi of the ruling appealed against. The rationale given by the trial Court for refusing to hear the appellants’ motion on notice challenging the Court’s jurisdiction is that there is an ‘order of this Court given on the 17th of October, 2018′.that all objections and the suit will be considered together’ and that ‘The said order binds all the parties until set aside by a Court of competent jurisdiction’. None of the grounds of appeal is an attack against this reasoning of the trial Court.
The law, as settled by many decisions of the Supreme Court, is that a ground of appeal must arise from the decision or judgment appealed against. See Florence Achonu v. Oladipo Okuwobi (2017) 14 NWLR (Pt.1584) 142. However, it is not sufficient that a ground of appeal arises from or relates to a decision or judgment appealed against. A ground of appeal should relate to and challenge the ratio decidendi of the decision appealed against. See Rt. Hon. Michael Balonwu & Ors. v. Governor of Anambra State & Ors. (2009) 18 NWLR (Pt. 1172) 13; Nigeria Deposit Insurance Corporation v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 800) 107; Mrs. Ganiat Yetunde Elias & Anor. v. Eco bank Nigeria PLC (2017) 2 NWLR (Pt. 1549) 175 and K.R.K. Holdings Nigeria Limited v. First Bank of Nigeria Limited (2017) 3 NWLR (pt. 1552) 326 at 342, per Nweze, JSC
Since none of the appellants’ grounds of appeal is an attack on the ratio decidendi of the decision appealed against, this appeal is also incompetent for this reason.
Assuming that the grounds of appeal in this case relate to the decision of the trial Court appealed against, ground 1 does not flow from the ruling of the trial Court delivered on 01/11/2018. Ground 1 alleges that the trial Court ‘erred in law’ when it ‘ordered that both the preliminary objection of the appellant (sic) and the substantive suit be heard together’. Nowhere in the bench ruling, reproduced earlier in this judgment, did the trial Court order that any preliminary objection be heard together with the substantive appeal. The said order for all objections to be heard together with the substantive suit was made on 17/10/2018 and this appeal is not against the decision of 17/10/2018. On 01/11/2018, the trial Court merely ‘adjourned’ the case to 13/11/2018 for hearing of the preliminary objections of the parties and the substantive suit in accordance with its order of 17/10/2018.
Ground 3 complains that the trial Court erred in law when it ‘held that the issue before the Court is a pre-election matter’. It is clear from the bench ruling of the trial Court that the Court did not therein hold that the issue before it ‘is a pre-election matter’.
Ground 4 complains of the trial Court ‘abridging the time within which’ the 4th and 5th respondents were to file their statements of defence. It is also on record that the trial Court did not by its bench ruling abridge the time that the 4th and 5th respondents could file their respective statements of defence.
To be brief, grounds 1, 3 and 4 in the appellants’ notice of appeal do not flow or relate to the decision appealed against and these grounds are incompetent and liable to be struck out.
In the appellants’ brief four issues were formulated as follows:
1)Whether in the light of the Supreme Court decision in GARUBA v. OMOKHODION (2011) 15 NWLR (Pt. 1269) 149, the subsisting judgment of A.I. Chikere J. of the Federal High Court, Abuja Division in Suit No. FHC/ABJ/CS/509/2018, delivered on 19th June, 2018, the extant Order of D.C. Maidoh J. of the High Court of Delta State, Asaba Division in suit No: A/91/2018 made on 31st May, 2018 and the preliminary objection of the appellants, challenging the jurisdiction of the lower Court, the lower Court was right to set case of the 1st ? 3rd respondents down for trial. (Distilled from ground 1)
2)Whether the lower Court ought not to have heard and determined the preliminary objection of the appellants challenging the jurisdiction of the lower Court, before setting the case of the 1st – 3rd respondents, which was commenced vide a writ of summons, and which would involve the calling of witnesses, down for hearing. (Distilled from ground 2).
3)Whether in the light of the Supreme Court decision in AKPAMGBO-OKADIGBO v. CHIDI (NO.1) (2015) 10 NWLR (Pt. 1466) 171 and the provision of Section 87(9) of the Electoral Act, 2010 (as amended), the suit of the 1st – 3rd respondents before the lower Court is a pre-election matter. (Distilled from ground 3).
4) Whether the Order of the lower Court made on 17th October, 2018, setting the matter of the 1st – 3rd respondents down for hearing and fixing it for 01 & 02/11/2018, when the appellants and the 4th & 5th respondents were yet to exhaust the time provided by the rules of the lower Court, within which they could file their statements of defence, thereby abridging the time within which they could file their processes, and when there was no prayer before the Court for such an indulgence, is not a breach of the fundamental right to fair hearing of the appellants, guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). (Distilled from ground 4).?
Issues 1, 3 and 4 are distilled from grounds 1, 3 and 4 which I have held to be incompetent. These issues, namely Issues 1, 3 and 4 are liable to be struck out because they were distilled from incompetent grounds of appeal.
The law as settled by many decisions is that an issue for determination must arise from grounds of appeal. See David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 and A.G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646. However, where issues are formulated from incompetent grounds of appeal, such issues will be struck out. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Madumere v. Okafor (1996) 4 NWLR (Pt.445) 637; Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185 and Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 14 NWLR (Pt. 1533) 458.
For the reason that grounds 1, 3 and 4 are incompetent, Issues 1, 3 and 4 formulated therefrom, respectively, are incompetent and they are hereby struck out.
The live issue in this appeal, if the appeal is competent, therefore, is Issue 2 identified by the learned senior counsel for the appellants, which is hereby further reproduced as follows:
‘Whether the lower Court ought not to have heard and determined the preliminary objection of the appellants challenging the jurisdiction of the lower Court, before setting the case of the 1st – 3rd respondents, which was commenced vide a writ of summons, and which would involve the calling of witnesses, down for hearing. (Distilled from ground 2).’
The kernel of the appellants’ argument on this issue is that the trial Court ought to have heard and determined the appellants’ preliminary objection challenging the jurisdiction of the trial Court before setting the case of the 1st – 3rd respondents down for hearing.
It is on record, especially on pages 1443 to 1449 of the record of appeal, that on the 17th day of October, 2018 the trial Court held and made the following orders:
Therefore, in order to protect the overall contending rights of all parties in this case the Court shall in consideration of the doctrine of lis pendens make the following preservative orders:
1.The objections of the 1st and 2nd defendants shall be taken with the substantive suit. And the objections of other defendant if it is filed.
2.The defendants shall file and serve their statement of defence to the main suit.
3.This matter shall be given accelerated hearing owing to the fact that it is a pre-election matter.
4. All the defendants are to take note of the pendency of this suit and not destroy the res.
5.Parties are to maintain status quo as at today the 17/10/18
6.I so hold.
The Court then concluded by stating as follows:
‘By agreement of Counsel this matter is hereby adjourned to 1/11/18 and 2/11/18 consecutive days for hearing of the substantive suit.’
The decision of the trial Court given on the 17th day of October, 2018 has not been appealed against. The law is settled that a decision not appealed against is deemed to have been accepted. See Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Wike E. Nyesom v. Hon. (Dr.) Dakuku A. Peterside (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed S. Dasuki v. Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 320.
The orders made by the trial Court on 17/10/2018 have not been set aside and the orders remain binding on the parties, including the appellants. The law is that an order of a trial Court is a decision binding on all the parties to the case and it remains binding until it is set aside by due process of law that is by a Court of competent jurisdiction either on an appropriate application or by an appeal. See Victor J. Rossek & Ors. v. African Continental Bank Ltd. & Ors. (1993) 8 NWLR (Pt. 312) 382; Amaechi v. Independent National Electoral Commission (2008) 5 NWLR (Pt. 1080) 227 and Labour Party v. Independent National Electoral Commission (2009) 6 NWLR (Pt.1137) 351.
As stated earlier; after making some orders, including the one that the objections of the appellants would be taken with the substantive suit, it was with the ‘consent’ of the learned counsel, including the learned counsel for the appellants, that the trial Court adjourned the case on 17/10/2018 to 01/11/2018 and 02/11/2018 for hearing. On page 1454 of the record of appeal, it is clear that the appellants had, in part, complied with the orders of the trial Court when Chief Adeniyi Akintola (SAN), learned senior counsel for the appellants, said on 01/11/2018, inter alia, as follows:
‘When this matter came up before Your Lordship on the 17/10/18, Court made 5 Orders which amongst was to file and serve the defendants statement of defence which we have complied with.’
The appellants, under the circumstances of this case ought not to be heard complaining that their objections ought not to have been taken by the trial Court together with the substantive suit. The attitude of the appellants is a demonstration of inconsistency in the conduct of their case. The law is that a party must be consistent in the conduct of his case and the Court will not allow a party to approbate and reprobate over an issue. See Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494 and Inter-Continental Bank Ltd. v. Brifina Ltd. (2012) 3 NWLR (Pt. 1316) 1 at 22, per Mukhtar, JSC (as he then was).
In this case, the order made on 17/10/2018, which was not appealed against, subsists and remains binding on all the parties. The trial Court was right in its decision to proceed with the hearing of the suit together with all the objections thereto.
The live issue in this appeal is hereby resolved against the appellants.
Consequently, this appeal is hereby dismissed as it is very unmeritorious.
The decision of the trial Court is hereby affirmed.
The sum of #300,000.00 (Three hundred thousand naira only) is hereby award as costs in favour of the 1st, 2nd and 3rd respondents against the appellants.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I agree with the reasons therein advanced as well as the conclusion reached that the live issue in this appeal is hereby resolved against the Appellants. Consequently, this appeal is unmeritorious, it fails and is also dismissed by me. I affirm the judgment of the trial Court. I abide by the order of costs in the lower Court.
Appearances:
Chief Adeniyi Akintola, (SAN) with him, G. Onaho, Esq., A. Lucky, Esq.and O.O. Akintola, Esq.For Appellant(s)
O.J. Oghenejakpor, Esq. with him, K.K. Iseru, Esq. and S.O. Adamu, Esq. for the 1st – 3rd respondents.
Ifeoluwa Ojediran, Esq. for 4th respondent.For Respondent(s)
