INDEPENDENT NATIONAL ELECTORAL COMMISSION V. DR. AHMED MOHAMMED SALIK & ANOR
(2010)LCN/3915(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of June, 2010
CA/A/195/2009
RATIO
AN APPEAL WHICH HAS BEEN WITHDRAWN UNDER THIS RULE, WHETHER WITH OR WITHOUT AN ORDER OF THE COURT, SHALL BE DEEMED TO HAVE BEEN DISMISSED.
An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. Therefore, a Respondent who did not file a cross appeal or a Respondent’s Notice cannot raise issues for determination which are outside the grounds of appeal filed by the Appellant. See OSAZUWA V. ISIBOR (2004) 3 NWLR (PT.859) 16. PER UWANI MUSA ABBA AJI, J.C.A
RESPONDENTS’ NOTICE OF CONTENTION: NATURE OF A RESPONDENTS’ NOTICE OF CONTENTION
The Respondents’ Notice of contention is based on the premise that the person giving the notice has won in the Court below and the loser is appealing. It is usually a procedure that follows an appeal. Therefore, without an appeal, a Respondent’s notice becomes irrelevant. See A.G. OYO STATE V. FAIRLAKES HOTELS LTD. NO.2 (supra). Where a Respondent’s Notice appears to have been hooked to the appeal and if that was the case, then the notice would die with the appeal. PER UWANI MUSA ABBA AJI, J.C.A
EFFECT OF THE WITHDRAWAL OF AN APPEAL UNDER THE COURT OF APPEAL RULES ON THE APPEAL
In NDIWE V. NWUDE (1999) 11 NWLR (PT.626) 314 at 325, the Supreme Court held: “Under Order 3 Rule 18 (5) of the Court of Appeal Rules, 1981 as amended (now Order 11 Rule 5 of the Court of Appeal Rules 2007), an appeal which has been withdrawn under the rule, whether with or without an order of the court shall be deemed to have dismissed.” See also ADEAGBO V. YUSUF (1990)6 NWLR (PT.758) 588 at 591. PER UWANI MUSA ABBA AJI, J.C.A
EFFECT OF THE WITHDRAWAL OF AN APPEAL WITH CONSENT OF PARTIES
The legal effect of withdrawing an appeal with consent of parties is that the appeal is dismissed. See Y.S.G. MOTORS LTD. V. OKONKWO (2002) 16 NWLR (PT.794) 53. A Respondent’s notice, being a procedure that follows an appeal, it therefore means that with the dismissal of the appeal, a Respondents Notice becomes irrelevant. PER UWANI MUSA ABBA AJI, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
INDEPENDENT NATIONAL ELECTORAL COMMISSION Appellant(s)
AND
1. DR. AHMED MOHAMMED SALIK
2. ALL NIGERIA PEOPLES’ PARTY Respondent(s)
UWANI MUSA ABBA AJI, J.C.A (Delivering the Lead Ruling): The 1st Respondent by way of originating summons dated and filed on the 16th day of February, 2007, instituted an action against the Appellant and the 2nd Respondent at the Federal High Court, Abuja, seeking the determination of the following questions:
1. Whether the 1st Defendant can elect to disregard the provisions of the Electoral Act, 2006 and the electoral regulations stipulating the time and form permissible for substitution of candidates
2. Whether the power to substitute a candidate by a political party under Section 34(1) of the Electoral Act 2006 is absolute, unfettered and unqualified.
3. Whether the letter dated 11/1/O7 written by the 1st Defendant to the 2nd Defendant seeking to substitute the Plaintiffs name could be said to have raised cogent and variable (sic) reasons in consonance with Section 34 (2) of the Electoral Act, 2006 to warrant the substitution of the Plaintiffs name to the 1st Defendant.
The 1st Respondent also prayed for the following reliefs:-
i. A DECLARATION that by virtue of the provision of the Electoral Act, 2006, and the 1st Defendant’s Electoral Guidelines, the substitution purportedly made vide the letter dated 11th day of January, 2007 and signed by the 2nd Defendant’s Secretary is null, void and of no effect in law,
ii. A DECLARATION that the non compliance with the prescribed form CF004A as stated in the Electoral Guidelines of the 1st Defendant renders the purported substitution of the Plaintiff as the 2nd Defendant’s candidate for the Dala Federal Constituency in Kano State null, void and of no effect in law.
iii. A DECLARATION that the earlier list of candidates for National Assembly Election submitted on or before 22/12/2006 by the 2nd Defendant to the 1st Defendant remains the valid and subsisting list for April, 2007 National Assembly election
iv. A DECLARATION that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the dully nominated candidate by the 2nd Defendant for Dala Federal Constituency in Kano State having accepted the nomination of the Plaintiff by publishing his name in accordance with Section 32 (3) of the Electoral Act, 2006 without compliance with the Electoral Act.
v. A DECLARATION that by virtue of the provisions of Section 34 (2) of the Electoral Act, 2006, the letter dated 11 January, 2007 written by the 2nd Defendant to the 1st Defendant seeking to substitute the Plaintiffs name does not raise any cogent and verifiable reasons sufficient in law to warrant a substitution of the Plaintiffs name by the 1st Defendant.
vi. AN ORDER of Perpetual Injunction restraining the Defendants either by themselves, their agents, privies, servants or howsoever described, from substituting or changing the mane of the Plaintiff as the duty nominated candidate for Dala Federal Constituency Kano State for the April 2007 election into the National Assembly.
Attached to the originating Summons is a Supporting Affidavit of Eighteen (18) paragraph, deposed to by the 1st Respondent’ as well as, four (4) Exhibits marked Exhibits DMS I, DMS II, DMS III and DMS IV By a motion on notice, dated and filed on the 27th day of February, 2007, the 1st Respondent sought leave of the lower court to amend the Originating Summons and same was granted on the 5tn day of March, 2007. The 1st Respondent’s Amended Originating Summons was filed on the 5th day of March 2007 with a further affidavit of ten (10) paragraphs also deposed to by the 1st Respondent wherein was attached Exhibit DM I. The Amended originating Summons raised the following four (4) issues for determination:
1. Whether the 1st Defendant can elect to disregard the provisions of the Electoral Act 2006, and the electoral regulations stipulating the time and form permissible for substitution of candidates,
2. Whether the power to substitute a candidate by a political party under Section 34 (1) of the Electoral Act 2006 is absolute, unfettered and unqualified.
3. Whether the letter dated 11/1/07 purportedly written by the Secretary of the 1st Defendant to the 2nd Defendant seeking to substitute the Plaintiffs name could be said to be proper and in order to nullify the earlier letter of nomination signed by both the Secretary and Chairman of the 2nd Defendant.
4. Whether the letter dated 11/1/07 purportedly written by the 2nd Defendant’s Secretary to the 1st Defendant seeking to substitute the Plaintiff’s name could be said to have raised cogent and verifiable reasons in consonance with Section 34 (2) of the Electoral Act, 2006 to warrant the substitution of the Plaintiffs name by the 1st Defendant.
The 1st Respondent, per his Amended Originating Summons also sought the same reliefs as contained in his original originating summons.
The story of the 1st Respondent, as can be gleaned from his supporting affidavits is that he was nominated and his particulars forwarded to the Appellant as the 2nd Respondent’s candidate for election into the House of Representatives to represent the Dala Federal Constituency of Kano State for the 2007 elections. His name was published but he was later told via a letter purportedly signed by the National Secretary of the 2nd Respondent alone, that his name has been substituted and he is no longer the party’s candidate.
On the 15th day of March, 2007, the lower court Coram B.F.M. Nyako, declared the letter dated 11th January, 2007 and signed by the Secretary alone without the Chairman, null and void and entered judgment in favour of the 1st Respondent.
Aggrieved by the decision, the Appellant appealed to this Honourable Court, vide a Notice of Appeal filed on the 3rd day of March, 2007 containing three grounds of appeal.
The 1st Respondent, seeking an affirmation of the judgment on other grounds, also filed a Respondent’s Notice dated 25th day of April, 2007 and filed on the 27th day of April, 2007, and its brief sought the determination of the following two issues:
1. Whether the trial Court should not have confirmed that the letter purporting to substitute the 1st Respondent did not disclose a reason, cogent and verifiable in compliance with the Electoral Act 2006.
2. Whether the Independent National Electoral Commission cannot prescribe forms as part of guidelines relating to the conduct of an election.
The 2nd Respondent did not file any brief of argument.
Before the hearing of the appeal, the Appellant filed a Notice of withdrawal of appeal, on the 25th day of November, 2009, brought pursuant to ORDER II RULE 1 of the Court of Appeal Rules, 2007, to wit:
“TAKE NOTICE that the Appellant herein intend and do hereby withdraws her appeal against all the Respondents in this appeal.”
On the 11th May, 2010, when the matter came up for hearing, the application to withdraw the appeal was taken by Ademola Bakre, Esq., for the 1st Respondent, the Appellant being absent though duly served. Accordingly, the Court granted the application and dismissed the Appellant’s appeal pursuant to Order 11 Rule 5 of the Rules of this Court, 2007.
Ademola Bakare, Esq., for the 1st Respondent, contended that his Notice of Contention still subsist notwithstanding the withdrawal of the appeal.
Pursuant to the order of this Honourable Court, parties filed written addresses on the fate of the 1st Respondent’s Notice of contention vis-a-vis the withdrawal of the appeal.
In the 1st Respondent’s written address on the status of Respondent’s Notice where the substantive appeal is withdrawn, settled by Ademola Bakare, Esq. a lone issue was distilled for determination to wit:
“Whether the withdrawal of the main appeal and a consequential order of dismissal or striking out of same will also end or render academic the 1st Respondent’s Notice filed in this appeal.”
In the 2nd Respondent’s written address settled by Nureini Jimoh Esq., a lone issue was also distilled for determination namely:
“Whether upon the withdrawal of this appeal, the Respondent’s Notice still subsists and alive for determination?”
At the hearing, learned Counsel for the 1st Respondent, Ademola Bakare Esq., adopted and relied on the 1st Respondent’s written address, dated and filed on the 16th day of April, 2010 and the 1st Respondent’s Reply on points of law filed on the 26th day of April, 2010 and urge this Honourable Court to hold that the Respondent’s Notice remains alive and appropriate for hearing and determination, despite the withdrawal of the substantive appeal.
Learned Counsel for the 2nd Respondent, Nureini Jimoh Esq., also adopted and relied on the 2nd Respondent’s written address, dated the 21st day of April, 2010 and filed on the 22nd day of April, 2010 and urge this Honourable Court to hold that the 1st Respondent’s Notice is irrelevant and same be dismissed.
After a careful perusal of the lone issue raised for determination by Counsel on both sides, it is my view that the issue raised by the 2nd Respondent can be subsumed into the issue as formulated by the 1st Respondent in determining the status of the Respondent’s Notice after the withdrawal and dismissal of the main appeal. For ease of reference, the 1st Respondent’s lone issue is hereby reproduced:
“Whether the withdrawal of the main appeal and a consequential order of dismissal or striking out of same will also end or render academic the 1st Respondent’s Notice filed in this appeal.”
In arguing this issue, learned Counsel for the 1st Respondent, Ademola Bakare Esq., submitted that by virtue of ORDER 9 RULES 1, 2, 4 and 5 of the Court of Appeal Rules, 2007, the 1st Respondent’s Notice of Contention is valid, despite the withdrawal of the main appeal. He submitted that the effect of withdrawal of an appeal under Order 11 Rule 1 is prescribed by Rule 4 of Order 11 and it is clear that the appeal shall remain on the list and come up for the hearing of any application made by the Respondent. He referred to the case of AMERICAN CYNAMID COMPANY V. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PT 171) 75 AT 31. In support of his argument learned counsel also referred to a book titled “CIVIL PRACTICE IN THE COURT OF APPEAL (NIGERIA), by IBE IKWECHEGH 2005, CHAPTER B, PP 244 – 250 particularly at PP 244 – 245. Learned Counsel submitted that because the 1st Respondent seeks in this Honourable Court, an affirmation of the judgment on grounds other than those relied on by the lower court, a Respondent’s Notice and not a cross appeal, was most appropriate.
He argued further that there was no consent between the parties, to the withdrawal of the appeal and, the Respondent’s Notice therefore remains alive, despite the withdrawal and the consequential striking out or dismissal of the main appeal as the withdrawal was not mutual. He relied on Order 11 Rules 1, and 4 of the Court of Appeal Rules, 2007 as well as the case of A.G. OYO STATE V. FAIRLAKES HOTELS LTD. NO.2 (1989) 5 NWLR (PT.121) 255 at 293. He cited and relied also on the case of RE CAVANDER’S TRUST (1881) 16 CH D 270. Based on the foregoing, he urged this Honourable Court to hear and determine the issues raised in the Respondents Notice, despite the withdrawal of the appeal.
On his part, learned counsel for the 2nd Respondent, Nureini Jimoh, Esq., submitted that a Notice of withdrawal effectively withdraws the appeal, he cited and relied on the case of A.G. OYO STATE V. FAIRLAKES HOTELS LTD. NO.2 (1989) 5 NWLR (PT.121) 255 and submitted further that a Respondent’s Notice can only survive after the withdrawal of the main appeal where the appeal was withdrawn at the hearing of the substantive appeal and not before the hearing of the appeal, as is in the instant case.
He submitted further that since the 1st Respondent in his Respondent’s Notice inter alia sought for an order of this Honourable Court dismissing the appeal, a cross appeal and not a Respondent’s Notice would have been most appropriate. He placed reliance on the case of ADEKELE V. AKIN OLUGBADE (1987) 3 NWLR (PT.60) 214-216 and submitted that since the Notice of Appeal was withdrawn before the hearing of the appeal, the Respondent Notice becomes irrelevant, since it is a procedure that follows an appeal. He therefore urged this Honourable court in the circumstances to hold that the Respondent’s Notice is irrelevant and dismiss same.
In his reply on points of law, learned counsel for the 1st Respondent submitted that learned counsel for the 2nd Respondent’s attempt at distinguishing between the case at hand and the case of A.G. OYO STATE V. FAIRLAKES HOTELS LTD. NO.2 (supra), was a most reprehensible misinformation in the 2nd Respondent’s argument.
He submitted further that in A.G. OYO STATE V. FAIRLAKES HOTELS LTD NO.2 (supra), despite the withdrawal of the main appeal, the Respondent’s Notice filed by the 1st Respondent remained relevant, valid and pending, all the more so where the withdrawal was brought under Order 11 Rule 1 of the Court of Appeal Rules, 2007, as in the instant appeal.
He referred also to Order 11 Rule 4 of the Court of Appeal Rules 2007 and contended that what the 1st Respondent seeks from this Honourable Court is an affirmation of the judgment on ground other than those relied on by the lower court. He therefore urged this Honourable Court to hold that the Respondent’s Notice is still alive and valid, despite the withdrawal of the substantive appeal.
Having considered the submissions of learned counsel for both the 1st and 2nd Respondents, it appears to me that the main contention of both counsel is the effect of Order 9 Rules 1 and 2 as well as Order 11 Rules 1, 3, 4 and 5 of the Court of Appeal Rules 2007, with respect to the Respondent’s Notice after the dismissal of the main appeal. The above mention provisions of the Rules are relevant and are hereby reproduced.
Order 9 Rules 1 and 2 provides:
RULE 1:
A Respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
RULE 2:
A Respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by the Court, must give notice to that effect specifying the grounds of that contention.
Order 11 Rules 1, 3, 4 and 5 provides:
RULE 1:
An Appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the Registrar, a notice to the effect that he does not intend to prosecute the appeal any further;
RULE 3:
The withdrawal of an appeal with the consent of the parties under Rule 2 of this Order shall be a bar to further proceedings on application made by the Respondent under Order 9
RULE 4:
If all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the Respondent under Order 9, and for the making of an order as to the disposal of any sum deposited against cost.
Underlining for emphasis.
RULE 5:
An appeal which has been withdrawn under this Rule, whether with or without an order of the Court, shall be deemed to have been dismissed.
An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. Therefore, a Respondent who did not file a cross appeal or a Respondent’s Notice cannot raise issues for determination which are outside the grounds of appeal filed by the Appellant. See OSAZUWA V. ISIBOR (2004) 3 NWLR (PT.859) 16.
Learned counsel for the 1st Respondent relied heavily on the case of A.G. OYO STATE V. FAIRLAKES HOTELS LTD. NO.2 (supra) and submitted that the Respondent’s Notice remains alive despite the withdrawal of the appeal.
The Respondents’ Notice of contention is based on the premise that the person giving the notice has won in the Court below and the loser is appealing. It is usually a procedure that follows an appeal. Therefore, without an appeal, a Respondent’s notice becomes irrelevant. See A.G. OYO STATE V. FAIRLAKES HOTELS LTD. NO.2 (supra). Where a Respondent’s Notice appears to have been hooked to the appeal and if that was the case, then the notice would die with the appeal.
By virtue of Order 11 Rule 4 of the Court of Appeal Rules, 2007, here before reproduced, where the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the Respondent under order 9, and for the making of an order as to the disposal of any sum deposited against cost.
The provision of order 9 rule 1 of the court of Appeal Rules, 2007, may have informed the decision of the court in the case of A.G. OYO STATE V. FAIRLAKES HOTELS LTD NO.2 (supra), which was heavily relied upon by the 1st Respondent; where the substantive suit was withdrawn and the Respondent’s Notice survived and was treated as a cross appeal by the Court.
The key word in Order 11 Rule 4 of the Court of Appeal Rules is “consent”. Counsel for the 1st Respondent in his written address did not admit to having consented to the withdrawal of the appeal. However, by the Records of the Court, on the 11th day of May, 2010, the Notice of withdrawal filed by the Appellant was brought to the knowledge of the Court, by the learned 1st Respondent counsel Bakare, Esq., and when asked of his reaction, he stated he has no objection and consequently the appeal was dismissed. In fact it was the counsel that applied for the application be taken even in the absence of the Appellant. In NDIWE V. NWUDE (1999) 11 NWLR (PT.626) 314 at 325, the Supreme Court held:
“Under Order 3 Rule 18 (5) of the Court of Appeal Rules, 1981 as amended (now Order 11 Rule 5 of the Court of Appeal Rules 2007), an appeal which has been withdrawn under the rule, whether with or without an order of the court shall be deemed to have dismissed.” See also ADEAGBO V. YUSUF (1990)6 NWLR (PT.758) 588 at 591.
In the instant case, the appeal was therefore withdrawn and dismissed with the consent of the parties. There is therefore no live issue before the Court upon which to hinge the Respondents’ Notice as the appeal is dismissed. Order 11 Rule 4 states that where the parties do not consent, the appeal shall remain on the list and shall come up for the determination of other issues including a Respondent’s Notice from time to time. In the instant case, the 1st Respondent having consented to the withdrawal of the appeal, the appeal was dismissed and there is nothing left after the dismissal of the appeal. In fact, Order 11 Rule 3 clearly states that the withdrawal of an appeal with the consent of the parties under Rule 2 of the Order shall be a bar to further proceedings on the application made by the Respondent under Order 9.
The legal effect of withdrawing an appeal with consent of parties is that the appeal is dismissed. See Y.S.G. MOTORS LTD. V. OKONKWO (2002) 16 NWLR (PT.794) 53. A Respondent’s notice, being a procedure that follows an appeal, it therefore means that with the dismissal of the appeal, a Respondents Notice becomes irrelevant.
There is nothing before us to treat the Respondents’ Notice as a cross appeal as was done in A.G. OYO STATE V. FAIRLAKES HOTEL NO.2 (SUPRA).
Consequently, I am of the considered view that Order 11 Rule 4 of the Appeal Court Rules 2007, does not avail the 1st Respondent, having consented to the withdrawal of the appeal in Court, the corollary of which is that by virtue of Order 11 Rule 5 of the Court of Appeal Rules 2007, the appeal and all other issues related thereto, like in the instant appeal, the 1st Respondent’s Notice died with the appeal and it is hereby dismissed.
There is no order as to costs.
JIMI OLUKAYODE BADA, J.C.A.: I have read in draft the Ruling of my learned brother UWANI MUSA ABBA AJI, JCA, just delivered. I am in complete agreement with My Lord that Order 11 rule 4 of the Court of Appeal Rules 2007 does not avail the 1st Respondent, having consented to the withdrawal of the appeal. Therefore the Appeal and the 1st Respondent’s Notice are also dismissed by me.
There shall be no order as to costs.
ABDU ABOKI, J.C.A.: I agree.
Appearances
Ademola Bakre, Esq.For Appellant
AND
Nureini Jimoh, Esq.For Respondent
