HON. OKINO ALOYSIUS ADEIZA v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13530(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/A/408/2019
RATIO
ELECTION PETITION: PERIOD WITHIN WHICH AN ELECTION PETITION JUDGMENT MUST BE DELIVERED
The suit leading to this appeal was filed on 31-10-2018. S. 285 (10) of the 1999 Constitution which provide that – “A Court in every pre-election matter shall deliver its Judgment in writing within 180 days from the date of filing the suit.” The 180 days expired on 28-4-2019. As it is, even if this appeal succeeds, it can no longer be remitted to the trial Court for judgment as it has lost its jurisdiction to deliver the judgment on the merit of the suit as a result of the effluxion of the said 180 days. In the circumstance, this Court cannot exercise its power under S.15 of the Court of Appeal Act to deliver judgment on the merits of the suit since the 180 days prescribed for that to be done has expired. See SHETTIMA V. GONI (2011) 18 NWLR (Pt. 1279) 413 at 452 in which the Supreme Court held that;
“It is settled law that this Court can only exercise its powers under the said Section 22 by exercising the jurisdiction of the lower Court where that Court has the jurisdiction to act, not where the Court has ceased to have jurisdiction over the matter. In short, the jurisdiction of this Court under section 22 of the Supreme Court Act depends completely on the Court of Appeal having jurisdiction to deal with the matter in issue and pending before it.”PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES:
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
HON. OKINO ALOYSIUS ADEIZA – Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. HON. LAWAL MOHAMMED IDRIS – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/408/2019 was commenced on 26-4-2019 when the Appellant herein filed a Notice of Appeal against the Judgment of the Federal High Court in FHC/ABJ/CS/1264/18 delivered on 26-4-2019 by TAIWO O. TAIWO J. The Notice of Appeal contains 1 ground of appeal. On 7-5-2019, the Appellant filed a second Notice of Appeal containing six grounds of appeal. The appellant adopted the 2nd notice of appeal and abandoned the first one. Having abandoned the notice of appeal filed on 26-4-2019, it is hereby struck out.
The Appellant, 1st 2nd and 3rd respondents filed their respective briefs as follows – Appellant’s brief, 1st respondent’s brief, 2nd Respondent’s brief, 3rd Respondent’s brief and the Appellant’s replies to each respondent’s brief.
The 1st respondent filed a notice of preliminary objection praying for an order striking out or dismissing this appeal for lack of jurisdiction on the grounds that;
i. The Court of Appeal is without vires/jurisdiction to hear this appeal as presently constituted;
ii. The two (2) Notices of Appeal filed by the
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Appellant and the Appellant’s Brief of Argument are not in compliance with the provision of Order 2, Rule 6 of the Court of Appeal Rules, 2016; as they are not endorsed with the 15t Respondent’s address for service. Therefore, the said Notices of Appeal and Appellant’s Brief of Argument are incompetent and liable to be struck out;
iii. The Appellant’s Writ of Summons signed at page 6 of Vol. 1 of the record, Statement of Claim signed at page 18 of Vol. 1 of the record, List of Plaintiff’s Witness signed at page 28 of Vol. 1 of the record and list of Documents to be Relied Upon at Trial signed at page 30 of Vol. 1 of the record are signed on behalf of ‘REUBEN EGWUABA LAW OFFICE’ who is not a legal practitioner whose name is on the Roll of Legal Practitioners.
iv. Therefore, the suit leading to this appeal was not commenced by due process of law and is liable to be dismissed as such;
v. Grounds 4, 5 and 6 of the Appellant’s Notice of Appeal and the issues 2 and 4 formulated therefrom are incompetent because the Grounds constitute an appeal against the obiter dicta of the trial Court and not the ration decidendi of the decision, which declined
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jurisdiction on the Appellant’s suit.
vi. On the foregoing, there is no competent Appeal before the Court of Appeal.
The Appellant’s brief raised the following issues for determination
1. “Within the meaning and intendment of Section 66(1)(i) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) read in juxtaposition with Section 31 (5) & (6) of the Electoral Act, 2010 (as amended), can a presentation of a forged National diploma certificate of Yaba College of Technology to INEC in 2015 or in the past election by the 3rd Respondent be raised in 2019 or anytime whenever he seeks to contests for an election. (Distilled from ground 1)
2. On a dispassionate examination/consideration of the inquiry being tried by the lower Court cum documentary evidence before the lower Court, was the rejection of the aggregate record of appeal in Appeal No. CA/A/277/2016 and form CF001 for 2015/2019 election which contained the forged Yaba College of Technology National Diploma certificate not wrongful (Distilled from ground 4 & 6)
3. Whether, the trial Court was right when it held that the
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subject matter of this suit which is presentation of forged national diploma certificate to INEC, instituted by the Appellant against the Respondents when the Appellant had no pending suit before any Court whatsoever, was an abuse of Court process and caught-up with the principle of estoppels per rem judicata (distilled from ground 2 & 3)
4. Whether, having regard to the circumstances of this case, the trial Court was right when it ignored the ruling on the admissibility of the Certified true copy of aggregate record of proceedings in appeal no. CA/A/EPT/647/2015 which was tendered separately and ruling reserved to be delivered at the stage final judgment. (Distilled from ground 5).”
1st respondents brief raised the following issues for determination-
1. “Whether or not the trial Court was right when it held that the Appellant’s case was filed outside the 14days prescribed by Section 285 (9) of the Constitution of Federal Republic of Nigeria,1999 (as altered by the Fourth Alteration Act, No 21, 2017) and declined jurisdiction in this suit. (ground 1 of the Notice of Appeal);
2. Whether or not the trial
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Court was right when it relied on the judgment of the Court of Appeal in Appeal No CA/C/647/2015; between OKINO ALOYSIUS ADEIZA & ANOR. V. LAWAL MUHAMMADU IDIRISU & 2 ORS. to hold that this suit was caught up the doctrine of estoppels per rem judicata and is an abuse of Court processes and declined jurisdiction in the suit. (Grounds 2 and 3 of the Notice of Appeal);
3. Whether or not the trial Court was correct when it held that the Nomination Form CF001 tendered by the Appellant in evidence ids inadmissible for non-compliance with Section 104 of the Evidence Act, 2011 (as amended) and that the aggregate record of appeal No CA/A/227/16 was irrelevant to the proceedings before it. (Grounds 4, 5, and 6).”
The 2nd respondent’s brief raised one issue for determination as follows;
“Whether the trial Court was right in holding that the Court had no jurisdiction to entertain the suit having regard to the oral and documentary evidence before it.”
The 3rd respondent’s brief raised the following issues for determination;
1. “Whether the learned trial judge was not right when he held that the matter is a pre-election matter and ought to
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comply with Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999(As Amended (4th Alteration).”
2. “Whether the refusal to admit the aggregate Record of Appeal and form CFOOI tendered by the Appellant was not proper and in accordance with the law?”
3. “Whether the issue of abuse of court process was not properly raised and determined by the trial Court.”
Let me consider the preliminary objection before I delve into the merits of this appeal if survives the objection.
The grounds for the objection are stated in the notice of preliminary objection as follows-
i. The Court of Appeal is without vires/jurisdiction to hear this appeal as presently constituted;
ii. The two (2) Notices of Appeal filed by the Appellant and the Appellant’s Brief of Argument are not in compliance with the provision of Order 2, Rule 6 of the Court of Appeal Rules, 2016; as they are not endorsed with the 1st Respondent’s address for service, therefore, the said Notices of Appeal and Appellant’s Brief of Argument are incompetent and liable to be struck out;
iii. The Appellant’s Writ of Summons signed at page 6 of Vol. 1 of the record,
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Statement of Claim signed at page 18 of Vol. 1 of the record, List of Plaintiff’s Witness signed at Page 28 of Vol. 1 of the record and List of Documents to be Relied Upon at Trial signed at page 30 of Vol. 1 of the record are signed on behalf of “REUBEN EGWUABA LAW OFFICE” who is not a legal practitioner whose name is on the Roll of Legal Practitioners.
iv. Therefore, the suit leading to this appeal was not commenced by due process of law and is liable to be dismissed as such;
v. Grounds 4, 5 and 6 of the Appellant’s Notice of Appeal and the issues 2 and 4 formulated therefrom are incompetent because the Grounds constitute an appeal against the obiter dicta of the trial Court and not the ration decidendi of the decision, which declined jurisdiction on the Appellant’s suit.
vi. On the foregoing, there is no competent Appeal before the Court of Appeal.
I have carefully read and considered the arguments in the 1st Respondent’s brief and Appellant’s reply brief on the objection.
The three Notices of Appeal that commenced this Appeal clearly complied with Order 2 Rule 6 of the Court of Appeal Rules 2016 by stating the
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names of the persons directly affected by this Appeal and their physical addresses. The addresses of all the parties herein are stated in the said notices. So the 1st Respondent’s objection to the competence of the Notice of Appeal on the ground that they are not endorsed with the 1st Respondent’s address for service is baseless and frivolous.
The objection to the jurisdiction of this Court to entertain this Appeal on the ground that the statement of claim, and other accompanying documents that commenced the suit at the Trial Court were not signed by a legal practitioner but a law firm, are equally baseless and frivolous. Firstly all the processes that commenced the suit leading to this Appeal were signed by a known and identified legal practitioner, “EGUABA REUBEN ESQ”, whose name was ticked amongst other names on all the processes. The Nigerian Bar Association seal bearing his name is stamped on the writ of summons close to his name, signature and law firm name.
Secondly, by virtue of Order Rule of the Federal High Court (Civil Procedure) Rules, the writ of summons once it is signed by the Registrar of the Federal High Court is validly
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issued and there is nothing in the Rules requiring that it be signed by the plaintiff’s legal practitioner before it can be valid. So assuming the plaintiff’s legal practitioner did not sign the writ of summons, it would still be valid as it is signed by the Registrar of the Federal High Court. See the decision of this Court in Leadership Newspaper Group Ltd V Ogebe (Rtd) (Unreported CA/A/686/2013 of 29-3-2017) restating the law on this point.
Finally, the objection is not one relating to this appeal. It relates to the processes that originated the suit leading to this Appeal. An objection to the hearing of this Appeal cannot be made on the ground of the competence of the processes of the Trial Court. Such a complain cannot be raised in an Appeal except by the means of a ground of Appeal against the judgment and proceedings of the Trial Court.
Let me now consider the objection to Grounds 4, 5, and 6 of this appeal and issues 2 and 4 formulated therefrom.
Learned Counsel for the 1st Respondent argued that the judgment of the trial Court, which is appealed against, did not determine the
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merit or the substance of the Appellant’s case at the lower Court, that what the judgment decided and upheld were the 1st and 3rd Respondents’ preliminary objections, that at pages 1009 of Vol. 2 of the record, the trial Court proceeded thus: “I shall first determine the NPO filed by learned counsel for the 1st Defendant and the motion filed by the Learned Counsel for the id Defendant. If they succeed, it terminates the matter without the need to go to the merits,” that the trial Court found merit in the grounds of the preliminary objections, whereas Grounds 4, 5, and 6 of the Appellant’s Notice of Appeal are challenging the decision of the trial Court on the substantive suit and not the decision that declined jurisdiction in the suit, that the jurisdiction of the trial Court was challenged primarily on two grounds, to wit: The suit was filed outside the 14 days prescribed by Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered by the Fourth Alteration Act, No. 21, 2017) and that by the judgment of the Court of Appeal in Appeal No CA/A/647/2015; between Okino Aloysius Adeiza & Anor V. Lawal Mohammadu Idirisu & 2 Ors
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the suit was caught up by the doctrine of estoppels per rem judicata and is an abuse of Court processes, that the trial Court adopted the procedure of hearing the substantive suit alongside the preliminary objection for expediency, being a pre-election matter, that in the final judgment, the trial Court delivered its decision on the preliminary objection, upheld the grounds of objection and declined jurisdiction in the suit as follows: “Haven decided all the grounds of the NPO in favour of the 1st and 2nd Defendants and by necessary implication in favour of the 2nd Defendant, it is my conclusion that this court has no jurisdiction to entertain this suit,” that at the trial, there indeed were objections taken on admissibility of the Nomination Form CFOO1 and aggregate record of appeals sought to be tendered by the Appellant and the Court in its judgment rendered a decision that the Nomination Form CFOO1 was inadmissible because it did not comply with Section 104 of the Evidence Act, 2011 (as amended) and rejected it, while the aggregate record of appeal was found to be irrelevant, that it is these decisions of the trial Court and, according to the Appellant,
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the lack of decision of the Court on aggregate record of proceedings in Appeal No CA/A/EPT/647/2015 that formed the basis of Grounds 4, 5 and 6 of the Appellant’s Notice of Appeal and issues 2 and 4 formulated for determination by the Appellant, that the lower Court, having found that it had not jurisdiction in the suit and sustained preliminary objection of the 1st and 2nd Respondents, any other thing done in the proceeding amounted to a nullity and an academic exercise, which cannot be a basis for an appeal, that if this Honourable Court finds that the decision of the trial Court, which declined jurisdiction is correct, it becomes irrelevant what the Court held on the admissibility of documents because the Court lacked jurisdiction from the foundation, that conversely, if your Lordships find that the trial Court was wrong to have declined jurisdiction, in the face of no decision of the trial Court on the merit or substance of this case which was commenced by Writ of Summons, where witnesses were called and cross-examined, what the Court ought to do is to order re-trial denovo, in which case, what was decided on admissibility of documents still becomes
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irrelevant and academic as the new Judge will start everything anew, that it is needless to dissipate energy on the trial Court’s decision on admissibility of documents in this appeal as the issue is merely academic. What is cogent is whether or not the decision of the trial Court that declined jurisdiction on this suit is correct or not, that the Appellant’s issues and argument are completely unrelated to the decision of the trial Court. Learned Counsel urged this Court to uphold their preliminary objection and strike out this appeal as incompetent and outside the jurisdiction of the Court of Appeal.
Learned Counsel for the 1st Respondent also argued as a preliminary issue that it is no longer possible for the trial Court or this Court to decide the merit of the suit leading to this appeal because 180 days prescribed by S.285 (10) of the 1999 Constitution for the delivery of judgment in the suit was expired and that therefore this Court cannot exercise its power under S.25 of the Court of Appeal Act to decide the merit of the suit.
Learned Counsel for the Appellant argued in reply that Grounds 4, 5 and 6 of this Appeal are directed
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against the decision of the trial Court refusing to admit those documents in evidence, such decisions are appealable, that the 1st Respondent’s contention that appellant’s issues and argument are completely unrelated to the decision of the trial Court is misconceived; that S.285(12) of the same 1999 Constitution gave this Honourable Court power to determine the appeal within 60 days and within the prescribed period, the Court of Appeal has all the powers of the High Court to bring to settlement all matters in contention between the parties to an appeal before it by making necessary order or give judgment to which parties may be entitled irrespective of the reliefs being sought by the parties as long as such order or reliefs are necessary for the determination of the disputes and without occasioning injustice to the parties that, this Court is given wide powers to make any order or reliefs sought in the notice of appeal, that the Appellant commenced the matter on the 31st of October, 2018 by writ of summons, evidence was led at the trial, document were tendered, some were admitted and some were refused to be admitted in evidence, and final written addresses
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were adopted before the final judgment on the 26th of April, 2019, that remitting the case to the Federal High Court in view of the 4th Alteration to the 1999 Constitution will lead to injustice and hardship as no Court can give with right hands and take with left hands.
Let me determine the merits of the above arguments.
It is obvious from the judgment of the trial Court that only the preliminary objections were determined therein. The trial Court stated therein how it would approach the determination of the objections and the merit of the suit. It stated thusly – ” I shall first determine the NPO filed by the learned Counsel for the 1st Defendant and the motion filed by the Learned Counsel for the 3rd Defendant. If they succeed, it terminates the matter without the need to go to the merits. I have already set out the grounds of the NPO above in this judgment and it will be needless to reproduce same again.”
It then concluded its determination of the objections thusly- Having decided all the grounds of the NPO in favour of the 1st and 3rd defendants and by necessary implication in favor of the 2nd defendant, it is my conclusion that this Court
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has no jurisdiction to entertain this matter. To attempt to do so will lead me no where other than an exercise in futility, as it will become a mere academic exercise, which will not be of any benefits to any of the parties and fact the Court itself. I shall at this juncture do nothing else but dismiss the suit in its entirety. The suit is accordingly dismissed. This is the judgment of the Court.”
So the submission of Learned Counsel for the 1st Respondent that the trial Court determined only the preliminary objections of the 1st and 2nd Respondent and after upholding them, dismissed the suit without deciding or pronouncing upon the merit of the suit or any matter related thereto is correct.
The suit leading to this appeal was filed on 31-10-2018. S. 285 (10) of the 1999 Constitution which provide that – “A Court in every pre-election matter shall deliver its Judgment in writing within 180 days from the date of filing the suit.” The 180 days expired on 28-4-2019. As it is, even if this appeal succeeds, it can no longer be remitted to the trial Court for judgment as it has lost its jurisdiction to deliver the judgment on the merit of the suit as a result
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of the effluxion of the said 180 days. In the circumstance, this Court cannot exercise its power under S.15 of the Court of Appeal Act to deliver judgment on the merits of the suit since the 180 days prescribed for that to be done has expired. See SHETTIMA V. GONI (2011) 18 NWLR (Pt. 1279) 413 at 452 in which the Supreme Court held that;
“It is settled law that this Court can only exercise its powers under the said Section 22 by exercising the jurisdiction of the lower Court where that Court has the jurisdiction to act, not where the Court has ceased to have jurisdiction over the matter. In short, the jurisdiction of this Court under section 22 of the Supreme Court Act depends completely on the Court of Appeal having jurisdiction to deal with the matter in issue and pending before it.”
Similarly, in OBI V. INEC & ORS. (2007) 11 NWLR (Pt. 1046) 565 AT Pg. 639, paras. E-G, the Supreme Court, PER ADEREMI, J.S.C held as follows: “Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court have made in the interest of justice. This
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presupposes that the court below, the Court of Appeal, must have got jurisdiction to entertain the suit and the court below it also had jurisdiction in the matter but failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial court could not have made in resolving the dispute between the parties in the suit before it.”
It is noteworthy that ground 1 which complain against the parts of the judgment that decide that the suit was statute barred, is not covered by any of the four issues raised for determination in this appeal. As it is the said ground of appeal is in law deemed abandoned and liable to be struck out. As held by the Supreme Court in Ngilari V Mothercat Ltd (1999) 12SC (P11) “It is now settled that where a ground of appeal is not covered by the issues for determination set out in the appellant’s brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out.”
It is noteworthy that a large part of the arguments under issue 1 deal with the issue that the suit is statute barred in grounds 1 of this appeal. But, as I have held
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therein this ground is not covered by any of the issues raised for determination in the appellant’s brief and so is deemed by law to be abandoned and liable to be struck out.
Issue No 1 deals with complains against the decision of the trial Court that the past presentation of a forged certificate to INEC cannot be raised in a subsequent election to disqualify a candidate from the election. The exact text of the issue reads thusly –“Within the meaning and intendment of Section 66(1)(i) of the Constitution of the Federal Republic of Nigeria 1999 (as of the amended) read in juxtaposition with Section 31(5) & (6) of the Electoral Act, 2010 (as amended), can a presentation of a forged National diploma certificate of Yaba College of Technology to INEC in 2015 or in the past election by the 3rd Respondent be raised in 2019 or anytime whenever he seeks to contests for an election. It is glaring that the argument that the suit is statute barred is different from the subject matter of issue No 1 reproduced above.
In any case, as held by the Supreme Court in Fatunbi & Anor V Olanloye & ORS (2004) 67 SC 68 –“It is long settled by this Court that
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arguments and addresses of Counsel in their brief should be on what is contained in the issues formulated and not on grounds of Appeal.”
For the above reasons, I hold that the appellant’s argument that the trial Court Wrongly held that the suit is statute barred is not valid for consideration under issue No 1.
Having held that the jurisdiction to deliver judgment in the merit of the suit has been lost by the effluxion of 180 days from the date the suit was filed, being 31-10-2018, no useful purpose will be served determining the issue raised for determination in this appeal, as the appeal even if it succeeds would yield no benefits to the appellant. The appeal has been rendered an academic exercise.
On the whole, this appeal fails. It is hereby struck or dismissed. The judgment of the Federal High Court in suit No FHC/ABJ/CS/1264/2018 delivered on 26-4-2018 is hereby upheld. The appellant shall pay costs of N400,000.00 to the 3rd respondent.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, EMMANUEL AKOMAYE AGIM, JCA.
I am in agreement with his
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reasoning and conclusion and orders reached therein.
MOHAMMED BABA IDRIS, J.C.A.: My learned brother EMMANUEL AKOMAYE AGIM JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
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Appearances:
M.U. Ameh, Esq. For Appellant(s)
Boyede Joshua, Esq. with him, Victor Oguafor, Esq. for the 1st Respondent.
Wendy Kuku, Esq. for the 2nd Respondent
Ify Ikeabuegwu Esq, Patience Kunle for the 3rd Respondents For Respondent(s)
Appearances
M.U. Ameh, Esq. For Appellant
AND
Boyede Joshua, Esq. with him, Victor Oguafor, Esq. for the 1st Respondent.
Wendy Kuku, Esq. for the 2nd Respondent
Ify Ikeabuegwu Esq, Patience Kunle for the 3rd Respondents For Respondent
