ELVIS S. CHINDA v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13293(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/A/280/2019
JUSTICES:
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
ELVIS S. CHINDA – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
2. EZENWO NYESOM WIKE
3. PEOPLES DEMOCRATIC PARTY – Respondent(s)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL IS AN ORIGINATING PROCESS
Let me boldly say that a notice of appeal is an originating process. There are a plethora of cases wherein the Supreme Court has held that the validity of originating process in a proceeding before a Court is sine qua non, an indispensable conduction, necessary for the Competence of the suit and indeed proceeding initiated by such Processes. Failure to commence an appeal with a valid notice of appeal goes to the root of the appeal since the conditions precedent to the exercise of the Courts jurisdiction would not have been met.
SeeMadukolu V. Nkemdilim (1962)2 SCNLR 341; Braithwaite v. Skye Bank Plc (2012) LPELR15532 (SC) @ Pg. 20; Kente v. Ishaku & ors (2017) LPELR 42077 (SC) @ pg 27;
In the case of Olu Ode Okpe V. Fan Milk Plc & Anor (2016) LPELR 42562 (SC), The Supreme Court held per Muhammad, JSC at P36, A-D that
“An Originating Process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.” PER ADAH, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE LOWER COURT
It is trite law that an appellate Court should not interfere with the findings of fact by the lower Court unless the findings are perverse. In the case of CPC v. INEC (2011) 18 NWLR, (pt. 1279) 493, Onnoghen, JSC; (as he then was) held that:
“It is settled law that an appellate Court will not interfere with a finding of fact by a lower Court where such findings are supported by the pleadings and evidence on record. Therefore where a lower Court unequivocally evaluates the evidence, and dispassionately appraises the facts, it is not the business of an appellate Court to substitute its own views for those of the trial/lower Court as the appellate Court will only interfere in exceptional circumstances such as where the finding is perverse, not supported by evidence or had occasioned a miscarriage of justice, see Woluchem vs Gudi (1981) 5 SC 291; Mogaji vs Odofin (1978) 4 SC 91; Obisanya vs Nwoko (1974) 6 SC 69; Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630 at 654.”
See also the cases of Ejindu & ors v. Obi ors (1997) 1 NWLR (pt. 483) 505; Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108; Oyadare v. Keji (2005) 7 HINLR (Pt. 925) 571. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abuja Division, in Suit No FHC/ABJ/CS/1430/2018 delivered on 8th of March, 2019 by I.E. Ekwo, J.
The appellant was the plaintiff while the respondents were the Defendants at the lower Court.
The matter was initiated vide an originating summons filed on 26/11/2018. The originating summons which was brought pursuant to Section 31 (4), (5) and (6) of the Electoral Act, 2010 as amended; Sections 1 (1), (3) and 182 (1) (j) of the Constitution as amended. The questions for determination and the consequential reliefs are worded as follows:
QUESTIONS:
(i) Whether, having regards to the facts and circumstances of this case, the Certificate of Birth titled Statutory Declaration of Age deposed to by one Collins Nyeme Wike purportedly sworn to on 3rd October 1986 at the High/Chief Magistrate’s Court Registry, Port Harcourt lied about/against itself and contained falsehoods?
(ii) Whether, having regards to the facts and circumstances of this case, the Certificate of Birth titled Statutory Declaration of
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Age deposed to by one Collins Nyeme Wike purportedly sworn to on 3rd October, 1986 at the High/Chief Magistrate’s Court Registry, Port Harcourt was forged, having lied about/against itself?
(iii) Whether the Certificate of Birth titled Statutory Declaration of age deposed to by one Collins Nyeme Wike purportedly sworn to October 1986 at the High/Chief Magistrate’s Court Registry, Port Harcourt was presented by the 2nd Defendant to the Independent National Electoral Commission (the 1st Defendant)?
(iv) Whether the information contained in the Affidavit Form C. F.O deposed to by the 2nd Defendant on the 29th October 2018 and presented to the Independent National Electoral Commission (the 1st Defendant) on the 2nd November, 2018 for the purpose of the 2019 General Governorship Election in Rivers State was false?
(v) Whether having regards to the provisions of Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 2nd Defendant is qualified and eligible to contest the 2019 General Governorship Election in Rivers State, having presented a forged certificate of age to the 1st Defendant?
(vi) Whether by
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the combined provisions of Section 182(1)(j) and 1 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 2nd Defendant ought to be disqualified and declared ineligible to contest the 2019 General Governorship Election in Rivers State made pursuant to the Constitution of the Federal Republic of Nigeria 1999 (as amended)?
RELIEFS:
1. A declaration that the Certificate of Birth titled Statutory Declaration of Age deposed to by one Collins Nyeme Wike purportedly sworn to on 3rd October 1986 at the High/Chief Magistrate’s Court Registry, Port Harcourt lied about/against itself and contained falsehoods.
2. A declaration that the Certificate of Birth title Statutory Declaration of Age deposed to by one Collins Nyeme Wike, purportedly sworn to on 3rd October 1986 at the High/Chief Magistrate’s Court Registry, Port Harcourt and presented by the 2nd Defendant to the 1st Defendant on the 25th December 2014 for the purpose of the 2015 General Governorship Election in Rivers state was forged.
3. A declaration that the information contained in the Affidavit Form C.F.001 deposed to by the 2nd Defendant on the 29th
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October 2018 and presented to the 1st Defendant on the 2nd November, 2018 for the purpose of the 2019 General Governorship Election in Rivers State was false.
4. A declaration that, by the provisions of Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the 2nd Defendant is not qualified or eligible to contest and participate in the 2019 General Governorship Election in Rivers State or any other such elections, having presented a forged certificate to the 1st Defendant.
5 An Order of this Honourable Court directing the 2nd disqualification of the Defendant from contesting or holding out himself for the 2019 General Governorship Election or any other elections made pursuant to the Constitution of the Federal Republic of Nigeria, 1999, (as amended), having presented a forged certificate to the 1st Defendant.
6. An order of perpetual injunction restraining the 1st Defendant from receiving or accepting from the 3rd Defendant or any other person any nomination of the 2nd Defendant, or from processing such nomination, or from presenting the 2nd Defendant on ballot, in respect of the 2019 General Governorship
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Election or any other elections made pursuant to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Originating Summons was supported by a 39 paragraph affidavit deposed to by the appellant. There were some documentary exhibits annexed to the affidavit.
The 1st Respondent (INEC) did not file any defence (Counter Affidavit) to the Originating Summons and never urged anything to the contrary, as far as the merit of the case was concerned.
On the other hand, the 2nd and 3rd Respondent in opposing the Originating Summons filed a Counter-Affidavit on 12/02/2019 (pages 410-417; of the Record of Appeal). The lower Court heard the case and in a considered judgment delivered on the 8th of March, 2019 dismissed the claim of the appellant.
Aggrieved by this decision, the appellant now appealed to this Court.
The Record of appeal was transmitted on 4th of April, 2019. The appellant filed his Brief on 10/4/19. The 2nd and 3rd Respondent Brief of argument was filed on 18th April, 2019. The appellant filed his reply brief on the 26th day of April, 2019.
The 2nd and 3rd Respondents filed a preliminary objection which was
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argued in their Brief. Before I get to look at the Preliminary objection there is the need to address an outstanding issue. This issue is the consideration of the motion of the appellant dated and filed 26/4/2019. The motion is to be considered along with the judgment of the Court. By this motion the appellant applied to the Court seeking two reliefs namely:
1. AN ORDER of this Honourable Court extending the time within which the Appellant may file his Reply to the Respondents’ Brief in Appeal No. CA/A/280/2019 between Elvis S. Chinda vs. Independent National Electoral Commission & 2 Ors. Out of time.
2. AN ORDER of this Honourable Court deeming the Appellant’s Reply Brief already filed and served out of time as having been properly filed and served, the necessary fees having been paid.
And for such further or other Order(s) as the Honourable Court may deem fit to make in the circumstance.
The grounds for the application are expressed as follows:
1. The Appellant was served with the 2nd and 3rd Respondents’ Brief on 23/04/2019 (at 6.40pm). By the order of this Court, the Appellant had 2 days from the date of service to file a
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Reply, which expired on 25/04/2019.
2. The Respondents served the Appellant with 5 other processes relating to this appeal and a sister appeal, which the Appellant’s Counsel was also settling at the same time.
3. Counsel was unable to finish all the processes before the 2days expired. The Appellant has now completed the Processes and filed, hence this application.
The motion is supported by a 6 paragraph affidavit deposed to by the appellant himself. Paragraph 4 thereof says:
4. I was informed by A.G William-Wobodo, counsel to the Appellant/Applicant on 26/04/2019 at his contact office in Abuja at about 10am and I verily believe him as saying the truth, that:
i. He was working on several processes relating to this appeal and therefore was unable to finish all the processes before the 2 days expired and that he has now completes the processes.
ii. The Appellant requires the leave of Court to file the Reply Brief out of time, hence this application.
The 2nd and 3rd Respondents responded by a Counter-affidavit of 19 paragraphs. Through this they countered the affidavit of the Appellant/Applicant. Then the appellant
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on 6/5/2019, filed a further affidavit of 8 paragraphs. Paragraphs 4 and 5 read:
“4. I was informed by A.G. William-Wobodo, counsel to the Appellant on 03/05/2019 at his contact office in Abuja at about 1pm and 1 verily believe him as saying the truth, that the Appellant’s Reply Brief was ready as at 25/04/2019, but by the time the processes arrived the Court at about 3.45pm, Counsel was informed by the Cashier at the Court’s Registry and he believed him that the Payment Gateway (Server) was down and as such the Cashier could not receive the filing fees from Counsel; and that Counsel waited at the Court’s Registry till about 4.21pm on that day before he left, hence the failure to file on 2510412019.
5. That Counsel had to return the following day, when the process was then filed. The failure to file on 25/05/2019 was not deliberate, neither was it to nor did it occasion any prejudice on the and 3rd Respondents.”
Arguments were raised for and against this motion in the written addresses of the parties. I have carefully gone through the arguments of the parties in respect of this application for extension of time to file the reply’ brief of the
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appellant. For the 2nd and 3rd Respondents, pre-election matters like election matters are sui generis and time is of essence.
The law is settled that time is of high essence in election and pre-election matters. SeeWambai V. Donatus & Ors (2014) 14 NWLR (pt. 1427) 223 where Onnoghen, JSC (as he then was) held that time is of essence in a pre-election matter. Election matters are sui generis, very much unlike ordinary civil or criminal proceedings. See also Hassan V. Aliyu (2010) 17 NWLR (pt. 1223) 547; Gwede V. INEC & Ors (2014); Oke V. Mimiko (2014)1 NWLR (Pt. 1388) 225; Omisore V. Aregbesola (2015) 15 NWLR (pt. 1482) 205.
A pre-election matter is not difficult to identify or define. Even the name has said it all. It is all the actions or suits that are related to processes or steps that are taken prior to or before election. In the case of Akpamgbo-Okadigbo V. Chidi & Ors (2015) LPELR 24564 (SC), the Supreme Court per Muhammad JSC, defines a pre-election matter as follows:
“Now, a pre-election matter as the phrase connotes is a cause of action which predates and does not constitute any complaint against the actual conduct
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of an Election. In Amaechi v. INEC & Ors(2007) 18 NWLR (Pt. 1066) 42, this Court has held that issues of nomination and sponsorship of partys, candidates for an election precede the election and are therefore pre-election matters.”
Pre-election matters therefore are those issues that are preparatory and are germane to any election. Issues of qualification of a candidate, nomination of a candidate, listing and publishing list of candidates for election, etc are basic pre-election issues under the Electoral Act 2010, as amended.
In the instant case, the contest is on eligibility of the 2nd appellant to contest or stand for election as governor of Rivers state. This clearly and without any iota of doubt, is a pre- election matter. This matter along with election matters are sui-generis and fidelity to time slot is sine qua non to the hearing of the matter. Considering the time constraint and rigidity introduced by the amended Section 285 of the 1999 Constitution, it is expected that Parties keep to time in filing their processes as the Court has no jurisdiction to extend time in pre-election matters. The application of the appellant here is
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for extension of time to file reply brief. The appellant in this appeal was the person who filed a motion for and secured an order for accelerated hearing and abridgment of time in this appeal. He caused the Court to abridged time for the Respondents to file their respective briefs and his own reply after the filing of the Respondents brief. This Court is a Court of law as well as a Court of equity. Those who seek equity must do equity. A person latching on, to equitable reliefs must act fairly towards the person whom he seeks the relief against. This fact cannot be downgraded in the instant case where the appellant had caused the Court to cut short time for the respondents but is seeking the Court to extend his own time in a pre-election matter where time is of essence. This is nothing but an intolerable and inequitable adventure that this Court must not allow.
Furthermore, the grant of extension of time by the Court is not a matter of Course. It is completely at the discretion of the Court. As we all appreciate, a judicial discretion must be exercised judicially and judiciously having regards to the facts and circumstances of the case.
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In the instant case, the applicant/appellant had in his affidavit in support paragraph 4, along the line of his grounds 2 and 3 deposed on oath that he could not file his reply on time because of the pressure of work. In his further affidavit paragraphs 4 and 5, he changed gear and deposed to the act that the reply brief was ready as at the 25/04/2019 (which was within time) but that by the time the process arrived the Court at about 3:45pm Counsel was informed by the Cashier at the Court registry that the payment Gateway server was down and as such the Cashier could not receive the filing fees from the Counsel, and that the Counsel waited at the Court’s Registry till 4:21pm before he left hence the failure to file the reply on 25/04/2019.
The appellant has engaged himself in double speaking in this instance. Which of the stories does he want the Court to believe? The second story involved the cashier at the Court here but the cashier was not called to testify in this case. What remains is for the Court to hold that the applicant has not been able to convince this Court with tangible evidence to grant his application for extension of time.
From the foregoing, therefore, the application of the appellant extension of time to file his reply brief is not meritorious. It is hereby dismissed. The reply brief was filed on 26/4/19 was admittedly filed out of time. Any process filed out of time is incompetent and must be struck out. The reply brief of the appellant filed on 26/4/19 being out of time is hereby struck out. The reply brief therefore does not exist and cannot
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be used or considered in this appeal. Let me now go back to the appeal of the parties.
In the instant appeal, the 2nd and 3rd Respondents filed a notice of preliminary objection which was argued in their brief filed on 18/4/19.
The notices of preliminary objection was filed on 26/4/19. The objection was predicated on the following:
i. The Appellant failed to specify in the said (Amended) Notice of Appeal the part of the decision of the trial Court complained of with specificity and clarity as required by law.
ii. The Appellant failed to specify the identities, names and addresses of the persons directly affected by the appeal as required by law.
iii. The Appellant to specify the Addresses for Service of the (Amended) Notice of Appeal on the Respondents and no address for service on any person or party to this appeal is endorsed at the foot of the (Amended) Notice of Appeal as required by law.
iv. In the above circumstances, the Appellant’s Brief of Argument is grossly incompetent and has no valid base to stand.
In his argument the Learned Senior Counsel for the 2nd and 3rd Respondents canvassed that a notice of Appeal is
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the process of Court that initiates an appeal at the Court of Appeal. That any fundamental defect in it invariably renders it incompetent. He relied on the following cases:
DINGYADI V INEC (2010) LPELR 952 (SC) 60; FIRST BANK OF NIGERIA PLC V T. S. A. IND LTD (2010) LPELR 1283 (SC) 49, PARAS A-D.
FEDERAL REPUBLIC OF NIGERIA v. T. A. DAIRO & ORS (2015) LPELR-24303 (SC) e A.G. Fed V. Guardian Newspapers Ltd [1999] (pt. 618) 187; Odunze v. Nwosu [2007] 13 M LR (PT. 1050) 1; Agu v. Odofin [1992] 3 SCJN 161, 172-173; Ibeto v Aminu [2007] 5 NWLR (Pt. 1028) 446; Danmusa v Inuwa [2007] 17 NWLR (Pt. 1063) 391; Clev Josh Ltd. v Tokimi [2008] 13 NWLR. (Pt. 1104) 422 and other authorities.
The Learned Senior Advocate Chief F. O Orbih (SAN) for the 2nd 3rd Respondents pointed out also that the Notice of Appeal relied upon by the Appellant is the one dated the 19th day of March, 2019 but filed in the Registry of the Court below on the 20th day of March, 2019 but subsequently mended by and Order of this Honourable Court on 12th of April, 2019. That a look at the said Notice of Appeal will readily show that it is not in compliance with the
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requirements of the law and is incurably defective and incompetent and therefore incapable of activating the jurisdiction of this Court to hear the appeal. He submitted that the Notice of Appeal filed by the Appellant woefully failed to specify with clarity the part of the decision of the lower Court complained of by the Appellant. That the Appellant merely stated that he is appealing against “the entire judgment of the Court not favourable to the Appellant”. He submitted that this statement is nebulous and fails to meet the requirement of Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 which requires that the Appellant must “specify such part” of the decision the appellant intends to complain about in the appeal. That this Court and indeed the Respondents to this appeal cannot he left to speculate as to which part of the judgment the Appellant considers unfavourable to him When he failed to specify that part.
The learned Senior Counsel addressed the other legs of the objection all dealing with the notice of appeal and urged the Court to hold that the notice of appeal in the instant appeal has fallen short of the law and must be struck out. He relied
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on the decision of this Court in the cases of Nest Oil Ltd V. Onuoha (2011) LPELR 4590 (CA) at page 10 paras B-G per Awotoye, JCA; and that of this Court in Ihedioha v. Okorocha (2015) LPELR 25645 (CA) PP 10 24 on the same issue. The Supreme Court’s decision in the case was also relied upon. He finally submitted that the Appellants Notice of Appeal has not been properly filed. That it is not cognizable before this Honourable Court and it is incapable of invoking the jurisdiction of this Honourable Court. The Appellant neglected and failed to file a competent notice of appeal or to specify the part of the decision pf the lower Court he is complaining about and the names of the parties directly affected by the appeal as well as the addresses for service of the parties. This Honourable Court is duty bound to enforce the law and its rules and cannot assume jurisdiction to entertain an appeal filed in contravention of the law and rules.
The appellants reply to the Preliminary Objection filed on 26/4/19 and filed out of time had earlier in this judgment been struck out being incompetent. The fact that the appellants reply is not before
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the Court notwithstanding, the Court must look into the complaint marshalled against the competence of the notice of appeal in the instant case.
Let me boldly say that a notice of appeal is an originating process. There are a plethora of cases wherein the Supreme Court has held that the validity of originating process in a proceeding before a Court is sine qua non, an indispensable conduction, necessary for the Competence of the suit and indeed proceeding initiated by such Processes. Failure to commence an appeal with a valid notice of appeal goes to the root of the appeal since the conditions precedent to the exercise of the Courts jurisdiction would not have been met.
SeeMadukolu V. Nkemdilim (1962)2 SCNLR 341; Braithwaite v. Skye Bank Plc (2012) LPELR15532 (SC) @ Pg. 20; Kente v. Ishaku & ors (2017) LPELR 42077 (SC) @ pg 27;
In the case of Olu Ode Okpe V. Fan Milk Plc & Anor (2016) LPELR 42562 (SC), The Supreme Court held per Muhammad, JSC at P36, A-D that
“An Originating Process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can
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assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.”
In the instant appeal, the objection of the 2nd & 3rd Respondents is on three grounds principally and the objection is directly on the competence of the notice of Appeal. By the commended notice of appeal filed on 12/4/19, it is indicated that the part of the decision of the lower Court complained of is “Entire judgment of the Court not favourable to the Appellant.”
On the notice of appeal, the appellant indicates in paragraph 5 persons directly affected by the appeal in the following order:
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL
NAMES ADDRESSES
APPELLANT c/o Appellant’s Counsel
A. G. William- Wobodo
Edward & William
(Enbanc Chamber)
2 Peremabri Street, D/Line
Port Harcourt.
08037140764
achi.willianiwobodo@yahoo.com
1st RESPONDENT Independent National Electoral Commission,
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Headquarters,
Plot 436, Zambesi Crescent,
Maitama, FCT Abuja;
2nd and 3rd RESPONDENT Chief F. O. Orbih SAN, FCI Arb
C.P. Aninwoya Esq.
Ferd Orbih (SAN) & Co.
Flat 2, Plot 1692, Ilesgha Close Off Ibadan Street, Area 3, Garki Abuja
08036069092.
No one is listed here as a person affected by this appeal other than the lawyers in the case. Lawyers are in the case to render professional services not as interested parties. It is clearly to be noted also that the amended notice of appeal has no address for service endorsed on it. This situation is also the same with the Original notice of appeal at pp. 966 to 974 of the Record of appeal.
The Rules of this Court expressly under Order 2 thereof make an obligatory demand on the appellant to supply address for personal service. Order 7 Rules 2 and 3 along with Order 2 Rule 6 of the 2016 Rules of this Court provide as follows:
2.-(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part
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only of the decision of the Court below complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative shall be numbered consecutively.
(4) The notice of appeal shall be signed by the Appellant or his legal representative.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
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Then Order 2 Rule 6 provides:
Where under these Rules, any notice or other process is required to have an address for service endorsed on it; it shall not be deemed to have been properly filed unless such address has been endorsed on it.
The Court Rules are very clear and certain making it mandatory that names and addresses of all parties directly affected by the appeal. These Rules are on all fours with Order 6 of the 2011 Rules of this Court which was considered in the case of Ihedioha V. Okorocha (Supra) by this Court and later the Supreme Court. I want to point out also that at pages 6 to 7 of the Record of Appeal, the Originating Summons of the appellant had the addresses of the parties endorsed thereon. It is however, inexplicable that the original notice of appeal (which was later amended and even the amended) notice of appeal has no address for service endorsed thereon.
The notice of appeal in the instant appeal also did not state the names and addresses of all the parties directly affected by the appeal. The notice of appeal in this respect is deficient in endorsing and specifying the parties and their addresses as
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mandated by the Rules. This deficiency is fundamental and fatal. in the case of Ihedioha V. Okorocha (Supra) Eko, JCA (as he then was) held as follows:
“It is clear beyond doubt that this notice of appeal which does not have endorsed on it the address for service of the notice of appeal on the each of the 3rd- 36th respondents is fundamentally defective. I am aware that the 5th, 13th, 14th, 25th, 30th, 31st, and 33rd respondents come within the exception provided by the proviso to Order 2 Rule 1. Though no address for their service was provided; they however had knowledge of the notice of appeal and have submitted to the jurisdiction of this Court. A long line of cases from NGELIZANA v. ALIERO (1999) (supra) the provisions of the Rules requiring a plaintiff, petitioner or appellant to provide address for service of an originating process or any other process on the defendant or respondent have always been construed to be mandatory and the effect of non-compliance therewith is that the process “shall not be deemed not to have been filed” and therefore liable to be struck out as an incompetent process.”
On appeal to the Supreme Court, the Court
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considered whether failure to state the name and address of parties affected by an appeal is an irregularity. Peter Odili, JSC held that
“At this cross-road would be a definition of a Notice of Appeal and in my humble view, it is the root, the foundation of the appeal and if it does not qualify as such in a situation where that process has not been brought to the attention of the relevant party who would defend the assertion embedded the proposed appeal then the defect cannot be let off as an irregularity which is curable. Rather what would ensure is that the so called Notice of Appeal is fundamentally flawed and the only avenue open is for the Court to strike it out. This is because by that defect the jurisdiction of the Court cannot be activated or state differently the Court lacks the jurisdiction upon which it would enter into the adjudication. That is, when the question is asked if the Court has jurisdiction, the answer in accordance with the age long test as encapsulated in Madukolu v. Nkemdilim (1962) 2 SC NLR 341 would be a resounding NO. The test as has been a guide is if the said process has met the four elements for the Court
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to assume jurisdiction which are: – 1. The proper parties are before the Court. 2. The subject matter falls within the jurisdiction of the Court. 3. The composition of the Court as to members and qualification. 4. The Suit is commenced by due process of law and upon fulfilment of any conditions precedent to assumption of jurisdiction.”
In the instant case, the appellant did not state the names and addresses of those affected by the appeal. There is also no address for service endorsed on the notice of appeal. I completely endorse the submission of the 2nd to 3rd respondents that election matters are sui generis. By this token, it is required that election/pre-election matters must be conducted strictly in compliance with the rules guiding them. See Akande-Adeola & ANOR v. SEGUN & ORS (2015) LPELR 40031 (CA). See – Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 54-7. Strict compliance is expected and enforced by the Courts, so that any default in compliance, no matter how slight, could entail fatal consequences, as in the instant Appeal. The notice of appeal in the instant appeal is therefore fundamentally defective and the jurisdiction of this
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Court therefore, has not been activated. The order to give is that of a striking out.
From the foregoing I come to the conclusion that the preliminary objection succeeds and it is upheld. The notice of appeal is hereby struck out.
With this development there is no appeal to enable this Court consider it on merit since we have found that there is no competent notice of appeal.
Since we are the penultimate Court, and considering the fact that this is a pre-election matter, I shall look into the merit of this appeal as well. The appellant distilled seven issues while the 2nd and 3rd Respondents framed similar but modified seven issues for determination. The seven issues framed by the appellant read as follows:
1. Did, in the circumstances of this case, the non-exhibition of the evidence of payment of prescribed fee for the certified true copy of Exhibits P2 and P3 and other documents duly obtained from INEC render inadmissible the unchallenged and properly certified true copy of public documents exhibited before the Court? (Distilled from grounds 1, 2, 3, 5 and 6 of the Notice of Appeal).
2. Whether, having raised the issue of
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non-exhibition of payment of prescribed fee suo motu, the trial judge was right to have relied on same to dismiss the Appellant’s case without inviting the parties to address him on the issue and whether same occasioned miscarriage of justice on the Appellant? (Distilled from ground 4 of the Notice of Appeal)
3. Whether the trial Court was right when it held that the Appellant failed to establish beyond reasonable doubt the case of presentation of forged certificate of INEC against the 2nd Respondent? (Distilled from ground 7 of the Notice of Appeal)
4. Whether corroboration is required by law to establish the case of presentation of forged certificate to INEC against the 2nd Respondent, and if not, was the trial Court right to hold that the sole and unscathed affidavit evidence of the Appellant was incapable of establishing the case against the 2nd Respondent (Distilled from the grounds 8 and 10 of the Notice of Appeal)
5. Whether, in the circumstances of this case, the trial Court was right when it held that the evidence of a forensic expert was required to establish that Exhibit P3A, which on its face lied against itself and contain
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falsehood, was false and forged? (Distilled from ground 9 of the Notice of Appeal)
6. Whether the trial Court was right when it failed or refused to reach specific finding and conclusion on the issue of falsity or otherwise of Exhibit P3A, which was properly raised and canvased before it? (Distilled from ground 12 of the Notice of Appeal)
7. Whether the trial Court, in arriving at the conclusion that the Appellant did not establish his case against the Respondents, properly evaluated the available evidence before it? (Distilled from grounds 1 and 13 of the Notice if Appeal).
The 2nd and 3rd Respondents in their brief framed the following seven issues for determination:
1. Whether the trial Court was right to hold that Exhibits 2 and P3 are inadmissible for non-payment of the prescribed fees or non-exhibition of evidence of such payment. This issue was distilled from grounds 1,2,3,5 and 6 of the Notice of Appeal.
2. Whether the trial Court raised suo motu the issue of non-exhibition of evidence of payment of prescribed fees for certified true copies of Exhibits P2 and P3, and if it ought to have heard parties on same before its
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decision thereon? This issue was distilled from ground 4 of the Notice of appeal.
3. Whether the trial Court was right when it held that the Appellant failed to establish beyond reasonable doubt his case of presentation of forged certificate of INEC against the 2nd Respondent. This issue was distilled from ground 7 of the Notice of Appeal.
4. Whether the evidence of the Appellant required corroboration to prove beyond reasonable doubt the case of presentation of forged certificate to INEC against the 2nd Respondent. This issue was distilled from grounds 8 and 10 of the Notice of Appeal.
5. Whether in the circumstances of this case, the trial Court was right when it held that the evidence of a forensic expert was required to establish that Exhibit P3A was false and forged. This issue is distilled from ground 9 of the Notice of Appeal.
6. Whether it is correct to say that the trial Court failed or refused to reach specific finding and conclusion on the issue of falsity or otherwise of Exhibit P3A. This issue was distilled from ground 12 of the rounds of Appeal.
7. Whether the trial Court in arriving at the conclusion that the Appellant
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did not establish his case against the Respondents, properly evaluated the available evidence before it. This issue is distilled from grounds 11 and 13 of the Notice of Appeal.
The issues are the same. The parties were pursuing in this appeal the ancillary issues considered in the case and leaving the more elaborate and concrete issues. Issues 6 and 7 appear to go near the core of the appeal, these issues bother on whether there was proper evaluation of evidence by the trial Court. And whether the lower Court made appropriate specific findings. Each of the parties from their arguments are holding unto their respective grounds in arguing for and against the decision of the lower Court.
The Lower Court gave adequate attention to the case before it and at the end the Court held that the case was an abuse of Courts process and further that the case is statute barred. The Learned trial judge after a thorough review of the facts before he dismissed the claim. The learned trial judge’s findings were all borne by the evidence presented before him.
It is trite law that an appellate Court should not interfere with the findings of fact by the lower Court
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unless the findings are perverse. In the case ofCPC v. INEC (2011) 18 NWLR, (pt. 1279) 493, Onnoghen, JSC; (as he then was) held that:
“It is settled law that an appellate Court will not interfere with a finding of fact by a lower Court where such findings are supported by the pleadings and evidence on record. Therefore where a lower Court unequivocally evaluates the evidence, and dispassionately appraises the facts, it is not the business of an appellate Court to substitute its own views for those of the trial/lower Court as the appellate Court will only interfere in exceptional circumstances such as where the finding is perverse, not supported by evidence or had occasioned a miscarriage of justice, see Woluchem vs Gudi (1981) 5 SC 291; Mogaji vs Odofin (1978) 4 SC 91; Obisanya vs Nwoko (1974) 6 SC 69; Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630 at 654.”
See also the cases of Ejindu & ors v. Obi ors (1997) 1 NWLR (pt. 483) 505; Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108; Oyadare v. Keji (2005) 7 HINLR (Pt. 925) 571.
In the instant case, the findings of fact and the evaluation carried out by the learned trial judge cannot be
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faulted on any ground. The lower Court was right to dismiss the claim of the appellant after finding that it was an abuse of Court process and further that it was statute barred.
Pre-election matters such as in the instant case are timed. Failure to keep to the time slot defeats the claim out rightly. The appellant was clearly late in coming to Court to make this claim. I therefore find the appeal lacking in merit and must be dismissed.
The Appeal is accordingly dismissed. The judgment of the lower Court in suit No: FHC/ABJ/CS/143012018 delivered on 81312019 is hereby affirmed.
The parties are to bear their respective costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother ADAH JCA just delivered and I agree with his reasoning and conclusion. The Preliminary Objection has merit and I uphold it. I strike out the appeal on that ground.
On the merit, I agree that the appeal has no merit and I dismiss it.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, STEPHEN JONAH ADAH JCA. I am in full
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agreement with his reasoning and conclusion reached therein.
Let me comment briefly on the preliminary objection raised by the 2nd and 3rd Respondents challenging the competence of this appeal argued in their joint brief of argument filed on 18/4/2019.
The objection was predicated on the following grounds:
i. The Appellant failed to specify in the said Notice of Appeal the part of the decision of the lower Court complained of with specificity and clarity as required by law.
ii. The Appellant failed to specify the identities, names and addresses of the persons directly affected by the appeal as required by law.
iii. The Appellant failed to specify the Addresses for Service of the Notice of Appeal on the Respondents and no address for service on any person or party to this appeal is endorsed at the foot of the Notice of Appeal as required by law.
The non-compliance with the Court of Appeal Rules, 2016 is in respect of the Order 7 Rule 2 (1) where the Appellant, firstly, failed to specify the part of the decision complained about in the Notice of Appeal. Instead he merely stated that he is appealing against “the entire judgment of
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the Court not favourable to the Appellant.” Secondly, he failed to supply the identities, names and addresses of the persons directly affected by this appeal and thirdly, also failed to specify any address for service on the Respondents. Undisputedly, the Appellant failed to comply with the mandatory rules of Court with respect to the contents and requirements of Notice of Appeal as prescribed by Order 7 Rule 2 (1) of the Court of Appeal Rules. The law is trite that rules of Court are meant and must be obeyed. This principle of law is so firmly established and the law reports are replete of decided authorities on the point and therefore needs no citation, of barrage of authorities for conviction of the trite principle of law. However, for purpose of clarification, the case of Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 is very poignant where Tobi JSC at page 166 paragraphs E- G state thusly:
“Where a rule of Court has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and the issue of doing substantial justice does not or should not arise. The party who fails to comply with
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the rule has himself to blame. He cannot be heard to canvass the omnibus ground of doing substantial justice.”
Let me add that this principle is more stringent in election matters which are sui generis. The rules of Court must therefore be strictly complied with especially in election matters. See – Dr. Yusuf Mohammed & v. Hamisi Abdulaziz & ors (2008) LPELR 4496; Kanjal v. IFOP (2013) LPELR 22158 (CA); Akande Adeola & anr v Segun & ors (2015) LPELR 40031 (CA).
Order 2 Rule (6) of the Court of Appeal Rules specifically provides that: –
“2(6) where under these Rules, any notice or other process is required to have an address for service endorsed on it; it shall not be deemed to have been properly filed unless such address has been endorsed on it.”
The Amended Notice of Appeal filed by the Appellant in this matter is deemed not to have been properly filed and therefore not validly before the Court for the fundamental failure to endorse the address of service of the parties on the Notice of Appeal.
The essence of a Notice of Appeal, like any Originating Process, is to give adequate notice of the complaint of the
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Appellant. A Notice of Appeal which states that the Appellant is appealing against the “entire judgment of the Court not favourable to the Appellant” is very vague and uncertain. It is contrary to the mandatory provision of Order 7 Rule 2 (1) of the Court of Appeal Rules which requires “specifying such part” of the judgment complained of; thereby making the Notice of Appeal incurably defective.
A Notice of Appeal is an initiating process for an appeal before an appellate Court. Where an originating process, like a Notice of Appeal is defective, it goes to the root of the proceedings and jurisdiction of the Court. Putting it in another way, any defect in a Notice of Appeal will render the whole appeal incompetent and the appellate Court will lack the jurisdiction to entertain the appeal. See Olowokere v. African Newspaper (1993) 5 NWLR (Pt. 295) 583, Olarewaju v. B.O.N. Limited (1994) 8 NWLR (Pt. 364) 622, Uwazurike v. AG Federal (2007) 8 NWLR (Pt. 1035) 1.
In Imunze v. FRN (2014) LPELR 22254 (SC) at page 14 paragraphs BC, the apex Court stated succinctly that: –
“The originating process in all appeals is the Notice of Appeal.
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Once it is found defective, the Court of appeal ceases to have jurisdiction to entertain an appeal in whatever form. See Olowokere v. African Newspaper (1993) 5 NWLR (Pt. 295) 583.”
The Amended Notice of Appeal filed by the Appellant in this appeal is fundamentally defective and incompetent. It cannot activate the jurisdiction of this Court. The amended Notice of Appeal is hereby struck out.
For the above reason, and all the other reasons enunciated by learned brother in this lead judgment, I too dismiss this appeal.
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Appearances:
A.G. Williams-Wobodo, Esq. with him, Anyanwu, Esq. For Appellant(s)
Wale Abeeb Ajayi, Esq. for the 1st Respondent.
Chief F.O. Orbih, SAN with him, O.P. Aninwoya, Esq. for the 2nd and 3rd Respondents For Respondent(s)
Appearances
A.G. Williams-Wobodo, Esq. with him, Anyanwu, Esq. For Appellant
AND
Wale Abeeb Ajayi, Esq. for the 1st Respondent.
Chief F.O. Orbih, SAN with him, O.P. Aninwoya, Esq. for the 2nd and 3rd Respondents For Respondent
