OKONKWO ANTHONY IKECHUKWU & ANOR v. PASCHAL OKOLIE & ORS
(2019)LCN/13759(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of August, 2019
CA/OW/EPT/SHA/22/2019
RATIO
APPEAL: GROUNDS OF APPEAL
The law is settled regarding the position of the particulars of a ground of appeal. The position was captured in the case of OBOSI V. NIPOST (2013) LPELR 21397 (CA) by Abiru, JCA thus: –
it is trite that the purpose of the requirement of stating particulars of a ground of appeal is to inform the respondent and the Court of the errors or misdirection alleged in a ground of appeal so as to enable the respondent meet the case of the appellant and for the Court to be aware of the nature of the error or misdirection complained of ?xxxx Particulars of error are intended to highlight the complaint against the judgment on appeal and they show how the complaint against the judgment is going to be canvassed by the appellant xxxx. Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal xxxxxx. Thus, there must be a synergy between a ground of appeal and the particulars contained in the notice of appeal in support of the ground of appeal; the particulars of a ground of appeal must arise from the main complaint in the ground of appeal xxxxxx. Where there is a disconnection between a ground of appeal and the particulars in support thereof, the ground of appeal is said to be defective and incompetent xxxxx?
See also the case of OKE V. OGIDI (2017) LPELR ? 42396 (CA). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: WHAT IS AN INCOMPTETENT ISSUE IN AN APPEAL
As I have found incompetent issue, is that such an appeal is lacking in any proper issue upon which it can be determined; and consequently such an appeal must be dismissed for lacking in any proper or valid issue upon which it can be resolved. See HOMUS STEEL LTD V. DIAMOND BANK (2019) LPELR ? 47250 (CA) and GOVERNOR OF NASARAWA STATE V. SHEWAZA (2017) LPELR ? 44032 (CA) amongst many other cases. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: GROUND OF APPEAL: WHERE NO ISSUE IS FORMULATED FROM A GROUND OF APPEAL
The law is trite, indeed an elementary principle of law, that if no issue is formulated from a ground of appeal, it is deemed abandoned and liable to be struck out. see RASHEED OLAI YA v. THE STATE (2010) 2 SCM 163 @ 169-170; BAKARE v. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR. Pt 262, 641; LABIYI v. ANRETIOLA (1992) 8 NWLR pt. 258 @ 139. Ipso facto, where no issue is related to a Ground of Appeal, same will be discountenanced and struck out. In other words, where a Ground of Appeal is seemingly abandoned, it is liable to be ignored and discountenanced and to be struck out. E.B. UKIRI v. GECO-PRAKLA (NIG) LTD. (2010) 16 NWLR. (pt. 1220) 544 @ 565. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. OKONKWO ANTHONY IKECHUKWU
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. PASCHAL OKOLIE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal was brought by the Appellants against the decision delivered on 19/6/2019, by the National and Houses of Assembly Election Tribunal holden at Owerri, Imo State (hereafter to be simply referred to as ?the Tribunal?), deeming Election Petition No. EPT/NASS/SHA/IM/82/2019 ? OKONKWO ANTHONY IKECHUKWU & ANOR. V. PASCHAL OKOLIE & ORS.(hereafter to be simply referred to as ?the petition?), as abandoned and consequently dismissing the same. The Tribunal consisted or was made up of Hon. Justice Polycarp Kwahar(Chairman) and Hon. Mikailu Abdullahi and Hon. Justice J.S.C. Okibeas members 1 and 2 respectively.
?The Appellants as Petitioners, on 11/4/2019, filed the instant petition against the 3 Respondents on record challenging the declaration by the 3rd Respondent of the 1st Respondent as the winner of the election for the Orlu State Constituency of Imo State House of Assembly held on 9/3/2019, and supplementary election thereto, held on 23/3/2019. The grounds on which the petition was brought as set out in paragraph 10
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thereof are as follows: –
?(a) That the 1st Respondent was not duly elected by the majority of lawful votes cast at the election.
(b) That the election was invalid by reason of corrupt practices and substantial non-compliance with the provisions for (sic) the Electoral Act 2010 (as amended).?
The prayers of the Appellants as contained in the petition are as follows: –
?i. That this Honourable Tribunal do determine that the 1st Respondent did not score the majority of lawful votes cast at the election held on 9th and 23rd March 2019 for the Orlu State Constituency of Imo State.
ii. That the 1st Respondent ought not to have been declared the winner of the election as member representing the Orlu State Constituency having not won majority of lawful votes cast at the election.
iii. An order cancelling the certificate of return issued to the 1st Respondent as winner of the election for the Orlu State Constituency of Imo State.
vi. An order nullifying the election and return of the 1st Respondent and a fresh election for the Orlu State Constituency of Imo State ordered.?
?
The notes of proceeding of the
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Tribunal for 29/6/2019, on pages 97-98 of the record; whereat the petition was deemed as abandoned and dismissed read thus: –
?Parties absent.
Chief Jerry Egemba for 2nd Respondent.
Anthony Ukah Esq. for 3rd Respondent.
Chief Egemba: The petitioners counsel is not in Court and did not apply for the issuance of Form TF 007 nor for issuance of Form TF 008 as required by Rules of this Tribunal. We urge this Tribunal to invoke paragraph 18(1) and (4) of the 1st Schedule to the Electoral Act and dismiss this petition as abandoned in the prevailing circumstances.
Ukah Esq: I adopt the position as the counsel to the 1st Respondent to dismiss the petition.The petitioner has shown no diligence to prosecute this petition.
Clerk: The petitioners? counsel is aware of today?s date.
Tribunal: The 2nd and 3rd Respondents were both served this petition. The petitioner was served with the 2nd and 3rd Respondent reply on 1/6/2019. Today is 19/6/2019 well over 18 days, the petitioners counsel did not deem it expedient to apply for issuance of pre-hearing information sheet even when he was served with the 2nd
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and 3rd Respondents reply on 1st June, 2019.
In the circumstances, we agree with learned counsel to the 2nd Respondent and counsel to the 3rd Respondent that the provisions of Paragraph 18(1) and (4) of the 1st Schedule to the Electoral Act needed to be invoked and is accordingly invoked, this petition is deemed abandoned and is dismissed.?
Being aggrieved by the decision of the Tribunal dismissing their petition, the Appellants initiated the instant appeal by lodging at the registry of the Tribunal on 5/7/2019, a notice of appeal bearing the same date. The notice of appeal contains two grounds of appeal and the said grounds shorn of their respective particulars read thus: –
?GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
The learned trial Tribunal erred in law in dismissing the petition as ?deemed? abandoned when the 1st Respondent had not been served with the originating processes being the petition, and thereby occasioned a miscarriage of justice.
GROUND TWO: ERROR IN LAW
The learned trial Tribunal erred in law in dismissing the substantive petition
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and thus denied the petitioner his constitutional right of ?fair hearing?.
The reliefs which the Appellants seek from this Court as set out in the notice of appeal are: ?(i) the order of Court allowing the appeal; (ii) the order setting aside the ruling of the trial Tribunal delivered on 19/06/2019 dismissing the petition; and (iii) the order remitting the petition back to the Tribunal for hearing.”
The appeal was entertained on 14/8/2019. Prior to the hearing of the said appeal, NneomaIwu, learned counsel for the 2nd Respondent having informed the Court that the said party has a preliminary objection (hereafter to be simply referred to as ?P.O.?) argued the same. In this regard, learned counsel adopted and relied on the argument on pages 3-7 on issue 1, in the brief of argument of the 2nd Respondent dated 5/8/2019 and filed on 6/8/2019, in urging the Court to dismiss the appeal.
?In opposing the P.O., and consequently urging the Court to overrule and dismiss the same, E.V. Onuegbu, learned leading counsel, adopted and relied on the argument in respect of the said P.O. contained in the reply brief of argument of
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the Appellants dated 13/8/2019 and filed on 14/8/2019, in response to the brief of argument of the 2nd Respondent. Thereafter, learned leading counsel, adopted and relied on the Appellants? brief of argument dated 23/7/2019 and filed on 24/7/2019; and Appellants? reply brief of argument to the brief of argument of the 2nd Respondent, identified hereinbefore, in urging the Court to allow the appeal.
In the same vein, learned counsel adopted and relied on the brief of argument of the 2nd Respondent identified hereinbefore, in urging the Court to dismiss the appeal.
The 1st and 3rd Respondents respectively, though served with the brief of argument of the Appellants on 25/7/2019, did not file briefs of argument in the appeal. Also, though these Respondents were on 9/8/2019, served with hearing notices in respect of the hearing of the appeal on 14/7/2019, neither of them was present in Court; nor represented by counsel.
The Appellants formulated two issues for the determination of the appeal in their brief of argument. The issues read thus: –
?(i) Whether the Honourable Tribunal breached the fundamental principles of fair
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hearing when it struck out the Petitioners/Appellants petition depriving them of the opportunity of having their petition heard on the merit on the ground that the Petitioners/Appellants failed to apply for the issuance of pre-hearing notice within the time prescribed by the provisions of Paragraph 18(1) and (4) of the First Schedule of the Electoral Act, and then proceeded to hold that the petition is ?deemed abandoned? and dismissed. This issue relates to ground two (2) of the Notice and Grounds of Appeal.
(ii) Whether by the provisions of paragraph 18(II) (sic) of the First Schedule to the Electoral Act, it is not mandatory to file and serve an application on notice on Petitioners before his petition can be dismissed as ?deemed abandoned.”
The two issues formulated by the 2nd Respondent for the determination of the appeal in its brief of argument are as follows: –
?1. Whether this petition is statute barred having regard to the provisions of Section 285(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. Whether the Tribunal rightly dismissed this petition as having been deemed
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abandoned.?
In accordance with settled position of the law to the effect that a P.O. to the hearing of an appeal must be first considered and resolved; as the resolution of the same in the affirmative will necessarily result in truncating the hearing of the appeal, I will first consider the P.O. of the 2nd Respondent.
The ground of objection in the Notice of P.O. dated 5/8/2019 and filed on 6/8/2019 in the appeal by the 2nd Respondent reads thus: –
?That the petition is caught up by the statute of limitation prescribed by Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
The 2nd Respondent having regard to its brief of argument glaringly set out its P.O. as an issue for the determination of the appeal. There are many decisions of this Court that it is incongruous for a P.O. to the hearing of an appeal, to be formulated as an issue for determination of the appeal. Appeals, it should be noted are argued and resolved on the issues formulated for their determination by the parties therein; while a P.O. is designed to prevent or stop the hearing of an appeal on the merit by the Court. It
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is therefore preposterous to formulate as an issue for the determination of an appeal, a P.O. which is designed to put a stop to the appeal being entertained on the merit. It is against this backdrop that many decided cases have held to the effect that a P.O. and an issue or issues for the determination of an appeal, are strange bedfellows. In this regard, see the Supreme Court decision in the case of ODUNZE V. NWOSU (2007) 13 NWLR (Pt. 1050) 1; and the decisions of this Court in the cases of NAJEGA V. SALIHU (2018) LPELR ? 46603 (CA); and TEC ENGINEERING CO. (NIG) LTD V. SALISU (2018) LPELR ? 46654 (CA); amongst many others. The procedure adopted by the 2nd Respondent in respect of its P.O. to the hearing of the instant appeal, is therefore glaringly irregular. However, as it is the competence of the petition dismissed by the Tribunal that the 2nd Respondent is attacking or challenging by its P.O.; and as the Courts are not prone or disposed to allowing competence cum jurisdiction in respect of any matter to be acquired by any particular Court or Tribunal where the same is lacking, a challenge to competence cum jurisdiction, is never swept under the
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carpet or discountenanced,once it is raised by a party to the matter (even if done irregularly), as the Appellants have in the main argued, that this Court should do in their reply brief of argument. Hence, this Court would still consider the challenge to the competence of the Appellants? petition, by the 2nd Respondent. This is more so given the settled position of the law, that a Court or Tribunal cannot acquire jurisdiction in respect of a matter by the act of commission or omission of a party to a case ,in notraising the issue of competence and/or jurisdiction timeously. In this regard, see the cases of MOBIL PRODUCING (NIG) UNLTD V. LASEPA (2002) LPELR ? 1887 (SC) and OLIYIDE & SONS LTD V. OAU, ILE-IFE (2018) LPELR ? 43711 (SC).
?
The purport of the P.O. of the 2nd Respondent, simply put, is that the petition of the Appellants which was filed on 13/4/2019, was filed outside the 21 days period provided for the filing of a petition by Section 285(5) of the amended 1999 Constitution of the Federal Republic of Nigeria. The stance of the 2nd Respondent is that, this is so, given the date on which the Appellants? cause of action
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arose vis–vis the date on which the petition in question was filed.
Aside from the positions of the Appellants that the P.O. of the 2nd Respondent does not arise from the decision of the Tribunal appealed against; and that in any case it was a fresh issue in respect of which the 2nd Respondent ought to have first sought and obtained the leave of this Court in order to argue the same; the Appellants also maintained the position that their petition was filed within the period stipulated by the amended Constitution in Section 285(5).
The provision of Section 285(5) of the Constitution (supra) reads thus: –
?An election petition shall be filed within 21 days after the date of the declaration of the result of the election.?
This Court has interpreted the provision re-produced above in a number of cases. The position of this Court in two of the cases amongst many others, is to the effect that, given the peculiar wording of Section 285(5) of the Constitution (supra), the period of 21 days within which an election petition is to be filed, does not include the date on which the result of the election in question, is declared.
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See the cases of VICTOR V. AYEDATIWA (2015) LPELR ? 41764 (CA); and MUSTAPHA V. DANLADI (2015) LPELR ? 41655 (CA).
This Court is bound by its previous decisions and it will be an act of recklessness for this Court in the knowledge of the above cited decisions not to apply the interpretation already accorded the provision of Section 285(5) of the Constitution (supra) to the instant petition. This is particularly so, as the 2nd Respondent has not cited any other authority in which the Supreme Court and indeed this Court,in dwelling on the provision of Section 285(5) of the Constitution (supra), or the provision in any statue that is word for word the same as that of the said Section 285(5), have come to the conclusion that the date of the declaration of the result of an election should be taken into consideration in computing the time within which an election petition is to be filed.
?
The Appellants? petition was filed on 13/4/2019, in respect of an election that was completed on 23/3/2019, after a supplementary election and the declaration of result issued on the said 23/3/2019. It is obvious therefore, that the
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Appellants had from 24/3/2019 till 13/4/2019 to file their petition and the said Appellants having filed their petition on the last day of the 21 days period stipulated in Section 285(5) of the Constitution (supra), cannot be said to have filed their petition outside the period stipulated for that purpose by the said Section 285(5) of the Constitution (supra).
Flowing from all that has been said, is that the P.O. of the 2nd Respondent which it argued as its issue 1, is overruled and dismissed.
I have hereinbefore set out the issues formulated by the Appellants and the 2nd Respondents respectively, for the determination of the appeal. It is to be noted that while the Appellants specifically distilled their issue 1, from ground 2 in the notice of appeal, they cleverly (and I have used the word “cleverly” most advisedly), did not tie or marry their issue 2, to the remaining ground of appeal (i.e. ground 1 in the notice of appeal); and only for the Appellants’ counsel at the hearing of the appeal to state that the said issue 2, was distilled from the said ground 1 in the notice of appeal. Suffice it to say that I have given serious
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consideration to ground 1 in the notice of appeal, and I cannot but say that Appellants? issue 2, glaringly does not flow from the said ground 1 (which has been re-produced hereinbefore). Though it is plausible to argue that Appellants? issue 2, can somehow be said to flow severally or jointly from the 4th, 5th, 6th and 8th of the particulars of ground 1 in the notice of appeal, this would however appear to go to nought, as an issue or issues for the determination of an appeal, is/are not distilled from the particulars of a ground of appeal; but must flow from the ground of appeal itself. The particulars in question read thus: –
?4. The Appellants were not served with copies of the replies of 2nd and 3rd Respondents.
5. Before the Tribunal can dismiss a petition as being abandoned, there must be an application to that effect on notice which must be served on the petitioner 3 clear days before the date of hearing.
6. Section 18(1) of the 1st Schedule Rules of Procedure for election petitions pursuant to the Electoral Act 2010 as amended did not provide that ?if one of the Respondent files his reply?, then the
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petitioner is at liberty to apply for issuance of pre-hearing notice.
8. The reliance on the oral application of the 2nd and 3rd Respondents by the Tribunal is in total breach of Section 18(3) which used the word ?shall? and thus, a condition precedent.?
The law is settled regarding the position of the particulars of a ground of appeal. The position was captured in the case of OBOSI V. NIPOST (2013) LPELR ? 21397 (CA) by Abiru, JCA thus: –
?xxx it is trite that the purpose of the requirement of stating particulars of a ground of appeal is to inform the respondent and the Court of the errors or misdirection alleged in a ground of appeal so as to enable the respondent meet the case of the appellant and for the Court to be aware of the nature of the error or misdirection complained of ?xxxx Particulars of error are intended to highlight the complaint against the judgment on appeal and they show how the complaint against the judgment is going to be canvassed by the appellant xxxx. Particulars of a ground of appeal are there to support and explain further the
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complaint raised in the ground of appeal xxxxxx. Thus, there must be a synergy between a ground of appeal and the particulars contained in the notice of appeal in support of the ground of appeal; the particulars of a ground of appeal must arise from the main complaint in the ground of appeal xxxxxx. Where there is a disconnection between a ground of appeal and the particulars in support thereof, the ground of appeal is said to be defective and incompetent xxxxx?
See also the case of OKE V. OGIDI (2017) LPELR ? 42396 (CA).
I am of the considered view that a causal or even painstaking consideration of the particulars of ground 1, in the notice of appeal reproduced hereinbefore, shows that they are complaints that should have been made separate grounds of appeal, before issue 2 can properly be distilled from them. The bottom line, is that Appellants? issue 2, does not flow or arise from ground 1, in the notice of appeal. Indeed, the particulars re-produced hereinbefore, are glaringly not in synergy with the complaint in the said ground 1, in the notice of appeal. As I have found
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Appellants? issue 2, not to flow or arise from ground 1 in the notice of appeal, it follows that the said ground is lacking in an issue for determination that can be said to have been properly distilled therefrom. The position of the law is that a ground of appeal that has no issue distilled therefrom, must be struck out.
It is likewise the position of the law, that an issue for the determination of an appeal, that has no root as it were, in a ground of appeal, is not a valid issue; and must be struck out. Accordingly, ground 1 in the notice of appeal and Appellants? issue 2 purportedly distilled from the said ground must be and are hereby struck out for being incompetent.
The Appellants? in my considered view, would appear to have compounded the precarious situation as it were, that they created for themselves by arguing a competent issue (i.e. their issue 1 distilled from ground 2 in the notice of appeal) together with their invalid or incompetent issue 2, inasmuch as it is lacking in foundation in a ground of appeal. The position of the law, where as in the instant appeal, a valid issue is argued together with an invalid or
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incompetent issue, is that such an appeal is lacking in any proper issue upon which it can be determined; and consequently such an appeal must be dismissed for lacking in any proper or valid issue upon which it can be resolved. See HOMUS STEEL LTD V. DIAMOND BANK (2019) LPELR ? 47250 (CA) and GOVERNOR OF NASARAWA STATE V. SHEWAZA (2017) LPELR ? 44032 (CA) amongst many other cases.
Flowing from all that has been said is, that Appellants? issues 1 and 2, that were argued together, must be and are hereby struck out. The situation therefore is that the appeal is bereft or lacking in any valid issue for its determination. Consequently, the instant appeal, is hereby dismissed without ado.
In the final analysis, the instant appeal is unmeritorious and is hereby dismissed. This leaves the decision of the Tribunal appealed against, extant.
I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, AYOBODE OLUJIMI LOKULO-SODIPE J.C.A.
I agree entirely with his reasoning conclusion.
It is clear that Issue 2 in
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the Appellant’s issue for determination does not flow from Ground 1.
The law is trite, indeed an elementary principle of law, that if no issue is formulated from a ground of appeal, it is deemed abandoned and liable to be struck out. see RASHEED OLAIYA v. THE STATE (2010) 2 SCM 163 @ 169-170; BAKARE v. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR. Pt 262, 641; LABIYI v. ANRETIOLA (1992) 8 NWLR pt. 258 @ 139. Ipso facto, where no issue is related to a Ground of Appeal, same will be discountenanced and struck out. In other words, where a Ground of Appeal is seemingly abandoned, it is liable to be ignored and discountenanced and to be struck out. E.B. UKIRI v. GECO-PRAKLA (NIG) LTD. (2010) 16 NWLR. (pt. 1220) 544 @ 565.
The Appeal lacks merit and same is also dismissed by me. I abide by the consequential order made as to costs that there shall be no order as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my learned brother Hon. Justice A. O. Lokulo-Sodipe, JCA, in which he has adequately treated all the issues therein contained. I agree with his
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reasoning and conclusion and abide by the consequential orders therein made.
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Appearances:
1st Appellant is in Court: E.V. Onuegbu, with him E. ObichiniFor Appellant(s)
NneomaIwu for 2nd Respondent.
1st and 3rd Respondents respectively absent and not represented by counsel.For Respondent(s)
Appearances
1st Appellant is in Court: E.V. Onuegbu, with him E. ObichiniFor Appellant
AND
NneomaIwu for 2nd Respondent.
1st and 3rd Respondents respectively absent and not represented by counsel.For Respondent
