ENGREENER TUBOIKONBA BANIYE & ANOR V. HON. OTELEMABA DAN AMACHREE & 2 ORS
(2011)LCN/4816(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of October, 2011
CA/PH/EPT/16/2011
RATIO
PROLIFERATION OF ISSUES IN AN APPEAL: WHETHER ISSUES FOR DETERMINATION CAN BE FORMULATED IN EXCESS OF THE GROUNDS OF APPEAL
… it is wrong in law to formulate issues for determination in excess of the grounds of appeal. Indeed the Supreme Court in a number of decisions, followed by this court has frowned at proliferation of issues in an appeal. See Amie v. Uzorka (1993) 8 NWLR (309) 1 at 16 paragraphs B-E. PER PAUL ADAMU GALINJE, J.C.A
ISSUES FOR DETERMINATION: WHETHER THE APPELLANT MUST TIE THE ISSUES FORMULATED FOR DETERMINATION OF THE APPEAL TO THE GROUNDS OF APPEAL
Another point of note is that the Appellants failed and/or neglected to tie the issues formulated for determination of the appeal to the grounds of appeal. This is contrary to the provision of order 18 rule 3 (1) of the court of Appeal rules 2011 which provides as follows:- “The brief which may be settled by counsel, shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.” The failure to tie the issues to the grounds of appeal by the appellant, especially when the issues are in excess of the grounds of appeal has created some difficulty in determining which of the issues and the argument therein relates to which grounds of appeal. PER PAUL ADAMU GALINJE, J.C.A
BRIEF OF ARGUMENT: DUTY OF THE COURT TO CONSIDER A NO MATTER HOW INELEGANT IT WAS WRITTEN
However the law is settled that, no matter how inelegant a brief is written, the court must consider it in order to determine the appeal on the merit. PER PAUL ADAMU GALINJE, J.C.A
ISSUES FOR DETERMINATION: ON WHAT BASIS ARE APPEALS ARGUED; IMPORTANCE OF ISSUES BEING FORMULATED FROM THE GROUNDS OF APPEAL
Appeals in this court are argued on the basis of the issues formulated from the grounds of appeal. Where those issues do not arise from the grounds of appeal, they are liable to be struck out. In Ikeme v. Anakwe [2003] 10 NWLR [Pt.829] 548 at 564-565 paragraph F- D, it was held that an appeal court can hear and decide any issue which is raised before it, provided such issue is covered by a ground of appeal. PER PAUL ADAMU GALINJE, J.C.A
ISSUES FOR DETERMINATION: CONSEQUENCE OF ALL THE ISSUES FOR DETERMINATION OF AN APPEAL BEING STRUCK OUT
With all the issues for determination of the appeal struck out, the grounds of appeal are deemed abandoned. They are accordingly struck out. PER PAUL ADAMU GALINJE, J.C.A
RELIEF: WHETHER A COURT CAN ONLY GRANT A RELIEF WHICH HAS BEEN ASKED FOR BY THE PLAINTIFF IN HIS PLEADING OR PETITION
The law is settled that a court can only grant a relief which has been asked for by the plaintiff in his pleading or petition. see A.G. of the Federation v. AIC LTD [2000] 10 NWLR (Pt.675) 293 at 305 – 306 paragraph F – C Ekpenyong v. Nyong (1975) 2 SC 71. PER PAUL ADAMU GALINJE, J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ENGREENER TUBOIKONBA BANIYE & ANOR Appellant(s)
AND
HON. OTELEMABA DAN AMACHREE & 2 ORS Respondent(s)
PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): On the 28th of September 2011, I dismissed this appeal and reserved reasons for my decision to a later date. I now give reasons for my decision in this appeal.
On the 26th day of April, 2011, an election was held to elect a member representing Asari-Toru constituency I into the Rivers State House of Assembly by the Independent National Electoral commission (INEC).
At the end of the election, the first Respondent herein was declared the winner and returned as elected member representing the said constituency.
The Appellant herein who contested the election under the platform of Action Congress of Nigeria (CAN) is dissatisfied with the result of the election and therefore challenged same at the National and State House of Assembly Election petition Tribunal (henceforth to be referred to as Tribunal) sitting at port Harcourt. Part of the petition that is relevant to this appeal reads thus:-
“Your 1st petitioner states that the election was held on the 26th day of April, 2011, when ENGR. TUBOIKONBA IBANIYE, HON OTELEMABE DAN AMACHREE and others were candidates, and your petitioner state that
(i) The election was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act (as amended).
(ii) The 1st Respondent was not duly elected by majority of lawful votes cast at the election. WHEREFORE your petitioner pray that it may be determined that the said HON. OTELEMABA DAN AMACHREE was not duly elected or returned and that his election was void by reason of corrupt practices, AND THAT your 1st petitioner ought to have been returned as elected.”
In reaction to the petition aforesaid, the first and 2nd respondents filed their respective replies and issued separate notices of Preliminary objection to the competence of the petition. The common ground of objection in the two notices of Preliminary objection is that the petition is in flagrant violation of the mandatory provision of paragraph 4(1) (c) of the 1st schedule of the Electoral Act 2010, in that the scores of the candidates, the person returned as the winner of the election and the ground or grounds on which the petition is based are not stated.
The Tribunal upheld the Preliminary objection in the following words:-
“It seems obvious to us that having not stated the scores of the candidates in the election including his own in a petition complaining of undue return, the petition is by that omission incurably effective (sic defective) and liable to be struck out.”
The petition was accordingly struck out. The Appellants herein are dissatisfied with the ruling of the Tribunal and have therefore brought this appeal. The notice of appeal at page 270 of the record of appeal contains three grounds of appeal.
Parties filed and exchanged briefs of argument.
The Appellants formulated five issues for determination of the appeal.
These issues read as follows:-
1. Whether the petition as filed, had any ground or grounds upon which it rested?
2. whether it cannot be correctly deduced or stated that page No. 2 of the petition contains two (2)grounds upon which the petition was based?
3. Whether it is not disclosed at page 2 of the petition that the election was challenged on the following grounds:-
(i) That the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act (as amended); and
[ii] That the1st Respondent was not duly elected by majority of lawful votes cast at the election.
4. Whether the failure of the Tribunal to separately consider (as a ground of petition) that the said election was void by reason of corrupt practices was not erroneous and whether such failure did not occasion a miscarriage of justice?
5. whether a ground seeking to void an election by reason of “corrupt practices or non-compliance”, is one which puts the scores of the candidates in issue and for which the scores of the candidate must be stated?
The 1st Respondent opened his brief of argument by attaching the competence of the issues formulated by the Appellant. According to Mr. Faye Dikio, Learned Senior Counsel for the 1st Respondent, who settled the 1st Respondent’s brief of argument, the Appellant not only formulated issues in excess of the grounds of appeal, but that the issues do not arise from any of the grounds of appeal. Thereafter Learned Senior Counsel formulated one issue for determination of this appeal. This issue reads thus:-
“whether the omission to state the scores, of the candidates invalidates the petition that complains of undue return and asserts that the petitioner is the one who ought to be returned as elected together with a complaint challenging the election on the ground of corrupt practices and non-compliance with the provisions of the Electoral Act.”
For the 2nd Respondent, the following sole issue was formulated and it reads:-
“Whether on the facts and circumstances of this case, the tribunal was justified in upholding the 1st and 2nd Respondents’ Objection and striking out the petition:”
The 3rd Respondent also formulated one issue for determination of this appeal. It reads thus:-
“Whether the Tribunal was right when it held that failure to state the scores of the candidates in the petition rendered the petition incompetent”.
Mr. Elumeze, Learned counsel for the 3rd respondent also attacked the competence of the issues formulated by the appellant. Since competence of the issues formulated by parties are preliminary issues, it must be addressed first before argument on the main appeal shall be considered.
I am in complete agreement with Mr. Faye Dikio, Learned Senior Counsel for the 1st Respondent, Mr. Isaac Kamalu Learned Counsel for the 2nd Respondent and Mr. Jerry Elumeze, Learned counsel for the 3rd Respondent that it is wrong in law to formulate issues for determination in excess of the grounds of appeal. Indeed the Supreme Court in a number of decisions, followed by this court has frowned at proliferation of issues in an appeal. See Amie v. Uzorka (1993) 8 NWLR (309) 1 at 16 paragraphs B-E.
Another point of note is that the Appellants failed and/or neglected to tie the issues formulated for determination of the appeal to the grounds of appeal. This is contrary to the provision of order 18 rule 3 (1) of the court of Appeal rules 2011 which provides as follows:-
“The brief which may be settled by counsel, shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”
The failure to tie the issues to the grounds of appeal by the appellant, especially when the issues are in excess of the grounds of appeal has created some difficulty in determining which of the issues and the argument therein relates to which grounds of appeal.
However the law is settled that, no matter how inelegant a brief is written, the court must consider it in order to determine the appeal on the merit.
In their submissions, Learned counsel for the 1st, 2nd and 3rd Respondents have argued forcefully that issues 1-3 as formulated by the appellants and the argument thereto do not arise from the ruling of the Tribunal attacked in this appeal or from any of the appellants, grounds of appeal, and to that extent issues 1-3 are incompetent. The appellants read the 1st, 2nd and 3rd Respondents’ briefs or argument and elected not to fife a reply to the submissions made herein above by the Respondents. Order 18 rule 5 of the court of Appeal Rules allows the appellants, if necessary to fife and serve or cause to be served on the Respondents a reply brief which shall deaf with all new points arising from the Respondent’s brief. Order 18 rule 10 clearly states that where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondents’ briefs.
Now having admitted that issues 1-3 do not arise from the ruling against which this appeal lies and the grounds of appeal, what then is the effect on the appeal.
Appeals in this court are argued on the basis of the issues formulated from the grounds of appeal. Where those issues do not arise from the grounds of appeal, they are liable to be struck out. In Ikeme v. Anakwe [2003] 10 NWLR [Pt.829] 548 at 564-565 paragraph F- D, it was held that an appeal court can hear and decide any issue which is raised before it, provided such issue is covered by a ground of appeal. Having therefore admitted that the 1st – 3rd issues do not arise from the grounds of appeal, the appellant has unwittingly conceded to the striking out of those issues.
They are accordingly struck out.
For the 4th and 5th issues. The decision of the Tribunal dwelt principally on the issue of the failure of the appellant to state scores of the candidates at the election that is being challenged. The Appellants’ grounds of appeal should have being a direct challenge to the findings of the tribunal on the issues of scores of candidate. This finding is not challenged by either the ground of appeal or the 4th and 5th issues.
Instead the appellants quarrel is directed towards the ground of the petition that dealt with corrupt practices or non-compliance which the Tribunal did not make any pronouncement. The 4th and 5th issues also stand the risk of being struck out and they are accordingly struck out. With all the issues for determination of the appeal struck out, the grounds of appeal are deemed abandoned. They are accordingly struck out.
In case I am wrong, I wish to examine the provisions of paragraph 4[1](c) of the 1st schedule to the Electoral Act 2010 and its effect on the Appellant’s petition.
This paragraph provides as follows:-
“4[i] An election petition under this Act shall
[c] state the hording of the election, the scores of the candidates and the person returned as the winner of the election:”
clearly the provision covers all the election petitions under the Electoral Act 2010. There is no exception. However in the case of Ogbeide vs. Osula & 3 Ors (2004) FWLR (Pt.191) 1609 which is cited by the Appellant, this court per Muntaka-Coomasie JCA, as he then was, held as follows:-
“The Tribunal was therefore in error to have struck out the petition. In the result I hold that failure of the Appellant to state the names and the numbers of votes of the candidates in the petition is not enough to render the petition incompetent. Moreso when the petitioner, now the appellant, is in addition questioning the return of the 1st respondent on other various grounds, including disqualification. ”
The only prayer that is set out in the Appellants’ petition has been reproduced elsewhere in this judgment. Even at the risk of repetition, ret me reproduce same as follows:-
‘”WHEREFORE your petitioners pray that it, may be determined that the said HON. OTELEMABA DAN AMACHREE was not duly erected or returned and that his election was void by reason of corrupt practices AND THAT your 1st petitioner ought to have been returned as elected.”
The law is settled that a court can only grant a relief which has been asked for by the plaintiff in his pleading or petition. see A.G. of the Federation v. AIC LTD [2000] 10 NWLR (Pt.675) 293 at 305 – 306 paragraph F – C Ekpenyong v. Nyong (1975) 2 SC 71.
From the prayers of the Appellants at the Tribunal could the 1st petitioner be validly returned as elected without setting out or specifying his scores and those of his opponents at the election? I do not think so I am therefore of the firm view that the was right in upholding the preliminary objection competence of the petition.
Accordingly this appeal shall be and it is hereby dismissed. There shall be cost of prosecuting this appeal assessed at N20,000.00 in favour of each respondent, and against the Appellants.
M.D. MUHAMMAD, J.C.A.: I agree.
T.O. AWOTOYE, J.C.A.: I agree.
Appearances
MR. E.G. IWEDIBAFor Appellant
AND
MR. FAYE DIKIO SAN with T. ASOBARI and MRS. A.O. AMEH for the 1st Respondent
MR. K. WODU for the 2nd Respondent
MR. J. ELUM EZE for the 3rd Respondent.For Respondent
