MUSA IBRAHIM DAN’ILLELA & ANOR v. ALH. ALIYU BAGUDO
(2018)LCN/12428(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2018
CA/S/59/2017
RATIO
COURT AND PROCEDURE: WHERE AN ISSUE IS RAISED SUO MOTO
“The settled position of the law is that before a Court decides an issue which it took suo motu it must invite the parties to address it on that issue as that is an aspect of Fair Hearing. See KUTI vs. BALOGUN (1972) NMLR 180 (PT. 2). By therefore raising an issue suo motu and basing its decision on it without hearing arguments from the parties tantamount to a denial of the Right of Fair Hearing of the Appellant. See KUTI vs. BALOGUN (1978) 1 SC 53 AT 60 and also the case of NDIWE vs. OKOCHA (1992) LPELR 1972 SC.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. MUSA IBRAHIM DAN’ILLELA
2. ALH. BELLO DOYA ZURU Appellant(s)
AND
ALH. ALIYU BAGUDO Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the decision of the Kebbi State High Court of Justice Birnin Kebbi in Suit No: KB/HC/8/2016 delivered by SABIU BALA SHUA’IBU, J., on the 16th day of January, 2016 where the Court below dismissed the Appellants’ Originating Summons, which was filed before it on the 18th day of April, 2016 on grounds that same lacked merit and ought to be dismissed.
By an Originating Summons dated the 18th day of April, 2016 and filed on the same date the Appellants literally set the law in motion against the Respondent claiming the reliefs as contained at Pages 1 – 3 of the Record of this Appeal. The Originating Summons was accompanied by the Appellants’ four (4) paragraphed affidavit to which they annexed Exhibits ‘A’ & ‘B’ in support of the Originating Summons. During the pendency of the Originating Summons and on the same 15th day of April, 2016 the Appellants filed a Motion on Notice for Interlocutory Injunction in suit No: KB/HC/M31/2016 asking for reliefs contained at page 24 of the Record of this appeal.
On the 29th day of April, 2016, the Court below granted all the reliefs sought in the Motion on Notice against the Respondent and on the 16th day of January, 2017 the Court below concluded the matter and delivered its Judgment against the Appellants.
Dissatisfied with the decision of the Court below, the Appellant has appealed to this Court vide a Notice of Appeal filed on the 19-1-2017. There are four (4) Grounds of Appeal filed, which are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial judge erred in law when he formed his decision on issues that were not placed before him and thereby causing miscarriage of justice against the Appellant.
2. The learned trial judge erred in law when he refused to consider the unchallenged affidavit evidence of the Appellant in his judgment and thereby causing miscarriage of justice against the Appellant.
3. The learned trial judge erred in law when he raised an issue suo motu (to wit; the import of Section 24(2)(b) of the Peoples Democratic Party (PDP) Constitution 2012 as Amended) without calling on parties to address him on the issue and thereby causing miscarriage of justice to the Appellant.
4. The learned trial judge erred in law when he relied on the provision of Section 24(2)(b) of the Peoples Democratic Party (PDP) Constitution 2012 (as Amended) to dismiss the Appellant’s case when the said section is not applicable to the case at hand, and thereby causing miscarriage of justice to the Appellants.
The Appellant’s Brief of Argument dated 29-10-2017 but filed on the 17-11-2017 was settled by G. A. SHEHU, ESQ. The Respondent filed no Respondent’s Brief of Argument. At the hearing of this Appeal on the 10-4-2018, learned Counsel for the Appellant adopted Brief of Argument on behalf of the Appellant and urged this Court to resolve this Appeal in favour of the Appellant. In essence therefore, the Respondent filed no Brief of Argument in this Appeal. The implication of this legally speaking is that the Respondent is deemed to have conceded to the points raised in the Briefs of Argument of the Appellant herein. See the cases of JOHN HOLT VENTURES LTD vs. OPUTA (1996) 9 NWLR (PT. 470) 101; ONYEJEKWE vs. THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704; UBA PLC vs. AJILEYE (1999) 13 NWLR (PT. 633) 116; This being an Appeal, however, the Appellant still has the obligation to succeed or fail on the strength of his case. It is not in the character of the Court of Appeal to accept hook, line and sinker the allegations contained in the Appellant’s Brief without critically examining whether or not the Reliefs claimed are grantable or sustainable in view of the prevailing law and circumstances applicable to the case in question. That is exactly what this Court is out to do in this Appeal.
ISSUES FOR DETERMINATION:
The Appellants have nominated for the determination of this Court, three (3) issues as follows;
1. Whether from the facts and circumstances of this case and the decision in ENUGU STATE UNIVERSITY OF SCIENCE & TECHNOLOGY vs. INSTITUTE OF JOURNALISM MANAGEMENT & EDUCATION LTD & 1 ORS (2010)11 NWLR (PT. 1205) 297, the learned trial Judge was right when he suo motu employed the provision of Section 24(2) of the Constitution of the Peoples’ Democratic Party (PDP) 2012 (as amended) without inviting the parties to address him on the issue. (Grounds 1 & 3)
2. Whether from the facts and circumstances of this case, the learned trial Judge was right to have employed the provision of Section 24(2) of the Constitution of the Peoples’ Democratic Party (PDP) 2012 (as amended) to dismiss the Appellants’ case. (Ground 4)
3. Whether from the facts and circumstances of this case the learned trial Judge could be said to have given due consideration to the unchallenged and un-contradicted affidavit evidence of the Appellants’ before dismissing their case. (Ground 2)
SUBMISSIONS OF COUNSEL;
ISSUES ONE to THREE;
Learned Appellant’s Counsel addressed Court on issues one, two and three together. In his opening submissions, he told Court that the duty of a Judge amongst other things is to be the referee in the football pitch, which means he should be an impartial arbiter; that it is not part of his duties to jump into the arena by taking sides to the detriment of the other party. He contended that in this case the main issue to be considered is the claim of the Appellants before the trial Court. The case before the trial Court was filed by an originating summons where the following questions and reliefs were raised and claimed respectively:-
(i) Whether or not by the clear construction of Section 47(6) of the Constitution of the Peoples’ Democratic Party (PDP) 2012 (as amended) and Exhibit ‘A’ & ‘B’ annexed to the affidavit in support of the originating summons hereto the 1st claimant was duly and validly appointed by the State Executive Committee.
(ii) Whether or not any other person other than the State Executive Committee as contemplated under Section 47(6) of the Peoples’ Democratic Party (PDP) Constitution can appoint any person including the Defendant to the office of chairman when a vacancy occurs to the office.
(iii) Whether or not the Defendant was right to have paraded himself as chairman despite the fact that he was not appointed by the State Executive Committee of the party.
(iv) Whether the Defendant was not wrong to have paraded himself as chairman of the party when he lacks the minimum qualification to hold the office as contemplated by the Constitution of the party 2012 (as amended).
In the event of question 1, above is resolved in the positive and questions 2, 3 & 4 above are resolved in the negative. The Claimants seek for the following reliefs:-
(1) A declaration that the 1st Claimant having gained the endorsement of majority members of the State Executive Committee of the Peoples? Democratic Party (PDP) Kebbi State was duly and validly appointed as the State Acting Chairman of the party pending the conduct of the election to fill the vacancy as contemplated by Section 47(6) of the Party’s Constitution 2012 (as amended).
(2) A declaration that the acts of the Defendant by parading himself as the Acting Chairman of the party was in contravention of Section 47(6) of the party’s Constitution 2012 (as amended) and therefore null and void ab-initio.
(3) A declaration that the Defendant having not possessed a minimum qualification of secondary school certificate is not qualified to hold the office of chairman PDP Kebbi State.
(4) An order of the Honourable Court restraining the Defendant by himself, his agents, privies, assigns or through any other person whose conduct may give effect to the intentions of the Defendant from parading himself as the Acting Chairman of the Kebbi State Peoples Democratic Party.
(5) An order of the Honourable Court restraining the Defendant by himself, his agents, privies, assigns or through any other person whose conduct may give effect to the intentions of the Defendant from running or attempting to run the affairs of the party pending the election to the office after the official convention of the party.
(6) An order of the Honourable Court restraining the Defendant by himself, his agents, privies, assigns or through any other person whose conduct may give effect to the intention of the Defendant from tempering, interfering or attempting to interfere with the claimants’ rights and functions as the valid Acting Chairman of the Peoples’ Democratic Party (PDP) Kebbi State.
(7) Such further or other order(s) as the Honourable Court may deem fit to make in the circumstances. (Page 1 – 3 of the Record of this appeal referred to).
The above are the questions raised by the appellants for the Lower Court to determine and the reliefs sought by them where the questions are determined by the Lower Court.
Unfortunately none of the questions raised by the Appellants was considered by the Lower Court instead in its Judgment at pages 180 – 182 of the record of this appeal this is what the Lower Court said:-
‘Now, I have perused with vigour the incisive submission of learned counsel on both sides. The submissions of by learned counsel, for the claimants, that the crux of the matter in the instant case revolves around the construction the Court will place on Ss. 47(6) and 50(9) of the PDP Constitution, 2012 (as amended) seem very attractive. However, it is my considered opinion that Section 47(6) and 50(9) of the PDP Constitution, 2012 (as amended) should not be read in isolation. The provision of PDP Constitution, 2012 (as amended) must be read as a whole if only to arrive at a just decision of the matters in controversy. Section 47(6) and 50(9) of the PDP Constitution should not be read in isolation with other provisions of the Constitution. They must be read cumulatively with other relevant provisions of the PDP Constitution, 2012 (as amended) so as to give meaning to the intention of the frames of the document. … Now, Section 47(6) of the PDP Constitution 2012 (as amended) provides; Where a vacancy occurs in any of the offices of the party, the executive committee at the appropriate level shall appoint another person from the area or zone where the office originated from, pending the conduct of election to fill the vacancy.’
It is to be deducted from the above provisions of Section 47(6) of the PDP Constitution, 2012 (as amended) that whenever a vacancy occurs in any of the offices of the party at the National level, it is the National Executive Committee of the party that appoints a replacement pending the election to fill the vacancy. And whenever a vacancy occurs in any of the offices of the party at the state level, it is the State Executive Committee of the party that appoints a replacement pending the election to fill the vacancy. And whenever a vacancy occurs in any of the offices of the party at the Local Government Level, it is the Local Executive Committee of the party that appoints a replacement pending the election to fill the vacancy.
However, that is not the end of the matter. Section 24(2)(b) of the PDP Constitution, 2012 (as amended) has in no uncertain terms directed the State Executive Committee of the party to implement the decisions and directives of National Working Committee, the National Executive Committee and the National Convention of the Party.
The section provides;
“Section 24(2)(b) the functions of the State Executive Committee and the National Convention.”
My understanding of the provisions of Section 24(2)(b) of the PDP Constitution cited above is that the powers of the National Organ of the party prevail over the powers of the State Executive Committee, In other words, whenever the decisions of the State Executive Committee conflict with those of the National Executive Committee of the Party prevail over those of the State Executive Committee of the Party.
‘…on the provision of S. 50(9) of the PDP Constitution, 2012 (as amended) it has been made expressly clear by the words
“except waived by the executive committee concerned”
contained in that sub-section that the National Executive Committee is empowered to waive the requirements of a minimum qualification for the defendant and by appointing him vide Exhibits ‘A’ and ‘B’ attached to the counter affidavit the National Executive Committee has by necessary implication waived the minimum requirement in favour of the defendant.
“The claims of the Claimants therefore lacks merit and must be dismissed. The case of the claimants is accordingly dismissed for lack of merit.”
(See page 183 of the Record of this appeal).
Arising from the foregoing, the argument of Counsel is that the Court below, although it rightly interpreted the provision of Section 47(6) of the PDP Constitution 2012, but erroneously made a swing to bring in Section 24(2)(b) of the same PDP Constitution to override what is before him. He argued that the Court below was only invited to interpret Section 47(6) and Section 50(9) no more no less (that is the “RES” of the case) and that for the Court below to employ anything outside what he was called upon to do (especially outside the pleadings) is tantamount to bringing in what is not before him and thereby contradicting the decisions in UKPO vs. NGAJI (2010)1 NWLR (PT. 1174) 175 AT 183 (PARA 9); O.C.C. (NIG.) LTD vs. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (PT. 13) 407; OGIDA vs. OLIHA (1986)1 NWLR (PT. 19) 786
It was further contended by Counsel that the Court below was in grave error to bring in Section 24(2)(b) on its own when none of the parties raised it in his pleadings and as such no reference was made by the trial Court to the pleadings or claim before it as the basis of its decision. Counsel equally submitted that even if the trial Court was right to have used Section 24(2)(b) of the PDP Constitution 2012 (as amended), that is has a corresponding duty to have equally invited the parties to address it on the issue giving the fact that neither the Appellants nor the Respondent raised that issue in their respective pleadings/claim, or even in their addresses as the issue was raised for the first time in the Court’s Judgment. Counsel also referred to Section 36(1) of the Constitution of Nigeria, 1999 and cited the case of ENUGU STATE UNIVERSITY OF SCIENCE OF TECHNOLOGY vs. INSTITUTE OF JOURNALISM MANAGEMENT OF EDUCATION LTD & 1 ORS (2010) 11 NWLR (Pt. 1205) 297 AT 302 (Para. 6) to buttress its decision. Counsel urged this Court to resolve this Appeal in favour of the Appellant.
RESOLUTION OF APPEAL
In resolving this Appeal, it would perhaps, to subsume the entire three (3) issues nominated by the Appellant under his issue number one dealing with the lower Court’s decision predicated on its reliance on the provision of Section 24(2) of the Constitution of the Peoples’ Democratic Party (PDP) 2012 (as amended), which the Court raised suo motu, without inviting the parties to address him on the issue. The settled position of the law is that before a Court decides an issue which it took suo motu it must invite the parties to address it on that issue as that is an aspect of Fair Hearing. See KUTI vs. BALOGUN (1972) NMLR 180 (PT. 2). By therefore raising an issue suo motu and basing its decision on it without hearing arguments from the parties tantamount to a denial of the Right of Fair Hearing of the Appellant. See KUTI vs. BALOGUN (1978) 1 SC 53 AT 60 and also the case of NDIWE vs. OKOCHA (1992) LPELR 1972 SC.
In the instant case, the Court below suo motu introduced Section 24(2)(b) of the Constitution of the PDP which was not presented for the interpretation. What the Court below was invited to interpret were Sections 47(6) and 50(9) which represented the ‘Res’ of the case and for the Court below to introduce anything outside what he was called upon to do, especially outside the pleadings of the parties tantamount to introducing what was not presented before him. It would be recalled that a careful examination of the records clearly show that none of the parties introduced the provision of Section 24(2) (b) of the PDP Constitution anywhere in their pleadings. To this end, this Appeal succeeds per force and the judgment of the Court below delivered in Suit No: KB/HC/8/2016 by SABIU BALA SHUA’IBU, J., on the 16th day of January, 2016 is hereby set aside. Cost of ?50,000.00 is awarded to Appellant against the Defendant.
HUSSEIN MUKHTAR, J.C.A.: I was honoured to read, in advance, the judgment just delivered by my learned brother Frederick O. Oho, JCA. I am in full agreement with the reasoning therein and the conclusion that the appeal has merit and should be allowed.
I hereby allow the appeal and adopt the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in advance the leading judgment of my learned brother, Frederick O. Oho, JCA just delivered and I agree with him that the appeal is meritorious. I too allow the appeal and abide by the award of cost of N50, 000 in favour of the appellant against the respondent.
Appearances:
G. A. SHEHU ESQ.For Appellant(s)
Respondent was not represented by Counsel and filed no Respondent?s Brief of Argument.For Respondent(s)
