OLAOSEBIKAN ABBAS & ANOR v. KAMIL TOPE OYEDELE & ORS.
(2010)LCN/3947(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of July, 2010
CA/I/EPT/HA/85/08
RATIO
REPLY BRIEF: ESSENCE OF A REPLY BRIEF; EFFECT OF THE FAILURE OF AN APPELLANT TO FILE ANY REPLY BRIEF
The essence of a reply brief is to provide an answer or response to points raised in the Respondents’ briefs, in the present case in form of preliminary objections. The Appellants did not file any reply brief at all, talkless out of time. By the provision of part of Order 17 Rule 10, the appellant is deemed to have conceded all the new points or issues in the 1st and 2nd Respondents’ brief, in form of the objections raised. See JOSHUA v. KAYODE (1994) 2 NWLR (PART 221); SALAMI V. MOHAMMED (2000) 11 WRN 76: JOSHUA V. STATE (2000) 5 NWLR (PART 658) 571: ABDULHAMID V. HABIB (2001) 18 WRN 174 AT 182 and AMADASUN V. UME (SUPRA) PAGE 228 where I had this to say in the judgment:- “…a reply brief should be an answer to the respondent’s’ brief which should deal with all new points arising from the respondent’s brief.” PER CHIDI NWAOMA UWA, J.C.A.
CAUSE OF ACTION: DEFINITION OF THE TERM “CAUSE OF ACTION”
Black’s Law Dictionary, Seventh Edition, at page 214, “Cause of action” is defined as: “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Cause of action has also been given several judicial definitions. In SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PART 174) PAGE 379 it was defined as: “the factual situation which if substantiated, entitles the Plaintiff to a remedy against the defendant.” See also BELLO & ORS. V. A-G OYO STATE (1986) 5 NWLR (PAPT 45) 825- In ADIGUN V. A-G OF OYO STATE (1987) 1 NWLR (PART 53) 678 SC it was held to: consist in the facts which enables a person to bring a complaint before the Court. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: CIRCUMSTANCES UNDER WHICH COURT CAN EXERCISE ITS JURISDICTION WITH RESPECT TO A RIGHT OF ACTION
From judicial authorities to which I am bound, the court can only exercise jurisdiction with respect to a right of action and cannot assume jurisdiction unless the plaintiff (appellants in this case) who has brought the action before it has a right to action. See BELLO & ORS. v. A-G OYO STATE (1986), PER CHIDI NWAOMA UWA, J.C.A.
ACADEMIC ISSUES: ATTITUDE OF THE COURTS TOWARDS ACADEMIC EXERCISE
The Supreme Court and indeed this Court in a plethora of cases frown at it, and instead discourage indulgence in an academic exercise that would bear no fruit, no matter the logic in such exercise. See the cases of NKWOCHA v. GOV. OF ANAMBRA STATE (1984) 1 S.C.N.L.R. 634, GOVERNOR OF KADUNA STATE v. DADA (1986) 4 NWLR (PART 38) 687/699, EZEANYA v. OKEKE (1995) 4 NWLR (PART 388) 142, 165 and MINISTRY OF WORKS v. TOMAS LTD. (2002) 2 NWLR (PART 752) 740 AT 790. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
1. OLAOSEBIKAN ABBAS
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. KAMIL TOPE OYEDELE
2. ACTION CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISIONER OSUN STATE, INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Governorship and Legislative Houses Election Tribunal, Osun State, sitting at Osogbo (hereinafter referred to as the Tribunal) delivered on 16th April, 2008.
On the 14th day of April, 2007 Elections were held into the Irepodun/Orolu Local Government State Constituency seat in the Osun State House of Assembly in which the 1st Respondent was declared as the winner of the election by the 3rd to 5th Respondents.
The Appellants as Petitioners were dissatisfied with the declaration of the 1st Respondent by the 3rd to 5th Respondents as the winner of that election and filed their petition dated 12th May, 2007, on 14th May, 2007 before the Tribunal.
The Reliefs sought before the Tribunal are set out in paragraph 36 of the Petition, page 8 of the records.
The 1st Respondent Kamil Tope Oyedele contested the election on the platform of the 2nd Respondent, Action Congress, and was declared the winner of the election having scored 16,714 votes while the 1st Petitioner/Appellant scored 16,443 votes. At the close of hearing the Tribunal dismissed the Appellants’ petition. The Appellants appealed to this court vide a Notice of Appeal dated 29th April, 2008, filed on 7th of May, 2008, containing three grounds of Appeal from which two (2) issues were formulated for determination. The issues are as follows:-
“1. Whether the Tribunal was right in holding that Exhibit ‘4’ (bundles of ballot papers) was unreliable and thus refused to attach any weight to it. (Ground 1).
2. Whether the Tribunal was right in failing, refusing and/or neglecting to collate, compute and/or evaluate the facts and scores of candidates in Ward 10 Unit 3. (Akeesin Area, Erin-Osun).”
(Grounds 2 & 3).
When this appeal was argued on 27th May, 2010, the learned counsel to the 1st Respondent Kunle Adegoke Esq. drew our attention to his preliminary objection at pages 4 – 5 of the 1st Respondent’s brief of argument filed on 9/4/09. The learned counsel who did not file a separate Notice of Preliminary Objection challenged the 1st issue in the Appellant’s brief; we were urged to strike out same as it is incompetent.
The learned counsel to the 2nd Respondent in a similar manner did not file a separate Notice of Preliminary Objection but argued same at pages 7 – 10 of the 2nd Respondent’s Amended Brief of Argument filed on 20/4/10 in urging us to dismiss the appeal based on the preliminary objection.
The learned counsel to the Appellants A. A. Abimbola Esq. who did not file any reply to the objections, argued that the objections are misconceived. We were urged to discountenance same and hear the appeal on the merits.
In arguing the Appeal, the learned Appellants’ counsel adopted and relied on the Appellants’ brief filed on 15/9/08, deemed as properly filed on 7/4/09, the two issues for determination from the three grounds of appeal were reproduced above. In response, Mr. Adegoke adopted and relied on the 1st Respondent’s brief dated and filed on 9/4/09 in which three issues were formulated in urging us to dismiss the appeal. The issues are:-
“1. Whether the Tribunal was right not to have attached weight to Exhibit (4) (Ground 1). (This issue is raised in the event that the preliminary objection raised above by the 1st Respondent does not succeed).
2. Whether the Tribunal properly evaluated the evidence before it in arriving at the conclusion that the Petitioners/Appellants have not established their case. (Ground 3).
3. Whether the Tribunal was right not to have collated the result and/or scores of candidates in Ward 10 Unit 3. (Ground 2).”
On his part, on behalf of the 2nd Respondent Mr. Afolabi adopted and relied upon his amended brief of argument dated and filed on 20/4/10 in which a sole issue was formulated for the determination of this appeal in urging us to dismiss the appeal, the sole issue is:-
“Whether the Tribunal was right in holding that Exhibit M’ (bundles of ballot papers) was unreliable and thus refused to attach any weight to it.”
In arguing his preliminary objection as contained in the 1st Respondent’s brief, the learned counsel submitted that neither a party nor a court is permitted to raise or deal with any issue which is not related to or does not arise from any ground or grounds of appeal, reliance was placed on the case of C.S.S. BOOKSHOPS LTD. v. R.T.M.C.R.S. (2006) 11 NWLR (PART 9926 530 AT 560 PARAGRAPHS A – B.
In respect of issue one, which the Appellants distilled from ground one of their Notice of Appeal, it was argued that issue one did not arise from ground one of the Notice of Appeal, while ground one complained about the rejection of Exhibit ‘4’, issue one complains about the Tribunal’s holding that Exhibit ‘4’ is unreliable and refusal of the Tribunal to attach weight to it, it was argued that the two are not reconcilable.
We were urged to strike out the issue and ground from which it was formulated, See ENEOLI v. ORAFKWE (2005) 3 NWLR (1961) 342 AT 351.
The 2nd Respondent’s Preliminary Objection was also argued in his amended brief of argument. The first ground is as to the competence of this appeal, as the Notice of Appeal was filed outside the 21 days stipulated for the presentation of an appeal, pursuant to Paragraph 1 of the 2007 Practice Direction No. 2. It was submitted that, the judgment of the Tribunal was delivered on 16th April, 2008 while the Notice of Appeal in this appeal was filed on 7th May, 2008. It was argued that if the computation is done inclusive of the date of the judgment as required by law, the Notice was filed a day outside the stipulated date. The case of MUDASHIRU HUSSAIN VS. TSIAKA ADELEKE & ORS. (UNREPORTED) APPEAL NO.CA/I/EPT/NA/69/08 delivered by this court on 17th December, 2009 was cited and relied upon, in arguing that the date of the delivery of the judgment must be included in the computation of time. We were urged to sustain the objection.
The second ground of objection is that the appeal discloses no cause of action against the 1st Respondent. It was submitted that by the 2nd Respondent’s application dated the 1st of December, 2009, granted on the 15th of April, 2010 leave was granted the 2nd Respondent to adduce further evidence following which the list of register of voters was filed, as per Exhibit XB’ attached to the motion paper. The voters register for Ward 10 Unit 3 Akesin Area appears on page 10 Column 3, showing the total number of registered voters in Ward 10 Unit 3 as 262.
It was the contention of the learned counsel to the 2nd Respondent that the Notice of Appeal and the Appellant’s brief of argument relate to only one unit, that is the unit in question – Ward 10 Unit 3 Akesin Erin-Osun, the Appellants’ prayer being that the votes cast at Ward 10 Unit 3 Akesin Area, Erin-Osun be computed and added to his score at the election.
Further, that from the difference between the scores of the 1st Respondent and that of the Appellant is 271 which is higher than the total number of registered voters in Ward 10 Unit 3, being the only Unit the Appellant is challenging, it was argued, discloses no cause of action and is a mere academic exercise if this Court is to look into it. Reliance was placed on the case of NICON INSURANCE CORPORATION VS. OLOWOFOYEKU (2006) 5 NWLR (PART 973) PAGE 245 AT 255 PARAGRAPHS F – G in which cause of action was defined.
It was submitted by learned counsel that this appeal is merely an academic exercise and should be dismissed. It is the practice of our courts and the law that where a preliminary objection has been raised, it has to be examined and resolved first before going into the substantive appeal as in this case, if need be. This is moreso where the objection touches on the competence of the appeal. In the case of the STATE v. ONAGORUWA (1992) 2 NWLR (PART 221) 1 PAGE 33, the Apex Court had this to say in this respect, in confirming the position of the law thus:
“where an objection is raised as to the competence of an appeal, the jurisdiction of the court to entertain it becomes an issue. It becomes therefore fundamental for the Court to deal with it first before deciding on the next course of action.”
See also the cases of LEKWOT V. JUDICIAL TRIBUNAL (1993) 2 NWLR (PART 276) 410 AT 442 and my earlier decision in AMADASUN V. UME (2007) 13 NWLR (PART 1051) PAGE 214 AT PAGE 226.
The first preliminary objection raised by the 1st respondent challenging the competence of issue one as formulated by the Appellants, was as stated earlier in this judgment, argued in the 1st Respondent’s brief of argument filed on 9/4/09.
The 2nd Respondent’s preliminary objection was also incorporated in the 2nd Respondent’s amended brief of argument filed on 20/4/10.
On 27/5/10 when this appeal was argued with the objections, the learned counsel to the Appellants A. A. Abimbola Esq. did admit that he did not file any reply to both objections but did say that the objections are misconceived; same should be discountenanced and that the appeal should be heard and determined on the merits. At this point it is noteworthy to point out the essence and the value of a reply brief generally and more especially as in the present case, where the objections have been incorporated in the briefs, of argument.
Order 17 Rule 5, of the. Court of Appeal Rules, 2007 provides:
“17-(5)
The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.”
(Underlining mine for emphasis)
From the above rule, “all new points arising from the respondents’ brief” would be the two separate objections, since the 1st and 2nd Respondents did not file separate Notices of the Preliminary objections, which is permitted by law. The essence of a reply brief is to provide an answer or response to points raised in the Respondents’ briefs, in the present case in form of preliminary objections. The Appellants did not file any reply brief at all, talkless out of time. By the provision of part of Order 17 Rule 10, the appellant is deemed to have conceded all the new points or issues in the 1st and 2nd Respondents’ brief, in form of the objections raised. See JOSHUA v. KAYODE (1994) 2 NWLR (PART 221); SALAMI V. MOHAMMED (2000) 11 WRN 76: JOSHUA V. STATE (2000) 5 NWLR (PART 658) 571: ABDULHAMID V. HABIB (2001) 18 WRN 174 AT 182 and AMADASUN V. UME (SUPRA) PAGE 228 where I had this to say in the judgment:-
“…a reply brief should be an answer to the respondent’s’ brief which should deal with all new points arising from the respondent’s brief.”
The importance of a reply brief where the need arises cannot be over emphasized, but since when this appeal was argued the learned counsel to the Appellants orally submitted that the objections are misconceived and should be discountenanced. Considering the special nature of election matters and the courts being slow in strict application of the rules of Court, I would for this reason look at the merits of the objections, which would otherwise have been deemed conceded by the Appellants.
The 2nd Respondent’s objection which challenges the competence of the appeal which is said to have been filed out of time and secondly, challenging that this appeal discloses no cause of action. While the 1st objection challenges only issue one and the first ground of appeal, the 2nd objection challenges the competence of the entire appeal. I will therefore resolve the 2nd Respondent’s preliminary objection before that of the 1st Respondent if need be. I will start with the second ground in which it was argued that the appeal discloses no cause of action, which goes to the root of this court’s power to determine the appeal one way or the other. It is important that I start by defining what a “cause of action” is. Black’s Law Dictionary, Seventh Edition, at page 214, “Cause of action” is defined as:
“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”
Cause of action has also been given several judicial definitions. In SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PART 174) PAGE 379 it was defined as:
“the factual situation which if substantiated, entitles the Plaintiff to a remedy against the defendant.”
See also BELLO & ORS. V. A-G OYO STATE (1986) 5 NWLR (PAPT 45) 825- In ADIGUN V. A-G OF OYO STATE (1987) 1 NWLR (PART 53) 678 SC it was held to: consist in the facts which enables a person to bring a complaint before the Court. In the present appeal, is there a factual situation which would enable this court to proceed on its inquiry? The learned counsel to the 1st Respondent in his second ground of objection had Argued that no cause of action has risen in this appeal for this court to determine.
An appeal starts with the Notice and Grounds of Appeal. For ease of reference, I will hereunder reproduce the Appellants’ three Grounds of Appeal, with the particulars.
“GROUNDS OF APPFAI
(1) The learned members of the Tribunal erred in law in rejecting Exhibits 4 which is the primary evidence of the election results in Ward 10 Unit 3 tendered before the Tribunal.
PARTICULARS
(a) Exhibits 4 constitute legal evidence before the Tribunal and, is the best evidence.
(b) The fact that Exhibit 4 was brought in envelopes by INEC should not vitiate its contents.
(2) The learned members of the Tribunal erred in law when they failed, refused and/or neglected to collate, compute and/or evaluate facts and scores of candidates in Ward 10 Unit 3 even though the election results including ballot papers were tendered and admitted in evidence and were also products of cross examination of witnesses during the hearing of the petition.
PARTICULARS
(a) The Tribunal was duty bound to examine the ballot papers with a view to determining the authenticity of the claim since the ballots papers were before them.
(b) The petitioner claimed majority of lawful votes over those of the 1st Respondent in the Ward hence the need for a new computation to verify those in Exhibit 4.
(3) The judgment is against the weight of evidence.
RELIEFS SOUGHT: To set aside the decision and order fresh election in the Constituency.”
From the three grounds of appeal and the Appellants’ brief of argument, it is clear that what the Appellants are challenging is solely the election result in Ward 10 Unit 3, this is also reflected in the three issues formulated by the Appellants for determination by this court in their brief of argument. Even though malpractices were alleged in other wards and units in the petition before the Tribunal but, there was no appeal against the Tribunal’s decision concerning the said Wards and Units, therefore same did not form part of this appeal and the objection under consideration. I will therefore only examine the relevant pleadings concerning the unit in question, Ward 10 Unit 3.
In the Petition (page 3 of the records) paragraph 3, the Petitioner gave the results as declared by the 3rd – 5th Respondents, confirming that the 1st Respondent scored 16,714 while the 1st Appellant scored 16,443, these results were not disputed. Paragraph 19 of the Petition reads:
“19. The total votes cast at Ward 10 Unit 03 Akeesin Area were not counted.”
While paragraph 24 pleaded thus:
“24. Consequently, at Ward 10 Unit 03 sited at Akeesin Area, Erin-Osun, the Electoral Presiding Officer was abducted few minutes to the counting of votes declaring the result which made it impossible for the result to be part of the aggregate result used in declaring the winner.”
Paragraph 36(a) reads:
“36 WHEREFORE your humble Petitioner prayed for:
(a) AN ORDER directing the 3rd to 6th Respondent to count the votes cast at Akeesin Area, Ward 10 Unit 3 and to add same to the votes of candidate.”
(b) AN ORDER nullifying the purported return or election of the 1st Respondent on the ground that he did not score the majority of lawful votes cast at the election of the 14th April, 2007 held at Irepodun/Orolu Local Government into Irepodun/Orolu State Constituency.
(c) ………………………………………………………………………………
(d) AN ORPER declaring your humble Petitioner elected in consequence of nullification of the results of the above wards and units.
(e) AND FOR SUCH FURTHER ORDERS.”
On the 15th day of April, 2010 on an application which was not opposed, leave was granted to the 2nd Respondent to adduce further evidence, following which the 2nd Respondent tendered the list of Register of Voters as per Exhibit B- attached to the Motion Paper, via the affidavit in support of the application. It is evident in the Register of Voters, at page 10 Column 3 that the Registered Voters in Ward 10 Unit 3 (Akesin Area) is a total of 262 voters. The Register of Voters is not in dispute.
The results as declared is not in dispute as shown in Exhibit ‘1’ in respect of Irepodun/Orolu Constituency (page 226 of the records) and paragraph 3 of the petition, page 3 of the printed records. The difference between the scores of the 1st Appellant and the 1st Respondent is clearly 271 votes, which is what is in contention from the Notice and Grounds of Appeal and the argument of the Appellants as earlier stated in this judgment. Since the total number of registered voters is jess than the total figure with which the 1st Respondent scored higher than the 1st Appellant, therefore, if this court should look into the allegations concerning Ward 10 Unit 3 and at the end, for whatever reason, awards all the contested votes of 262 to the 1st Appellant, the 1st Appellant would still not have scored the majority of lawful votes cast, that is:
1st Appellant: 16,443 1st Respondent: 16, 714 + 262
= = = =
16,705
= = = =
In line with the prayers sought in paragraphs 36(a) and (b) of the petition, by simple addition of the 262 votes to the scores of the 1st Appellant, the 1st Appellant would have scored 16,705, while the 1st Respondent’s undisputed votes is 16,714, thus still leaving the 1st Respondent with the majority of lawful votes cast at the election.
In the present case, is there a cause of action or situation that has arisen from the circumstances of this appeal that would entitle the Appellants to obtain a remedy from this court against the Respondents as urged? I think not. From judicial authorities to which I am bound, the court can only exercise jurisdiction with respect to a right of action and cannot assume jurisdiction unless the plaintiff (appellants in this case) who has brought the action before it has a right to action. See BELLO & ORS. v. A-G OYO STATE (1986) (SUPRA). In the present case, we would go into inquiry concerning the substantive appeal if there is a cause of action to which at the end, if the appeal succeeds, there would be a remedy. See ADIMORA V. AJUFO (1986) 3 NWLR (PART 80) 1. and A-G KWARA STATE V. OLAWALE (1993) 1 SCN3 208 AT 235.
With the present state of affairs and in agreement with the learned counsel to the 2nd Respondent, the circumstances of this case has not given rise to an enforceable or an actionable wrong. With the state of the pleadings, the judgment of the Tribunal being challenged and the grounds of appeal, I hold that No cause of Appeal has arisen, since even if the contested figure is added to that of the 1st Appellant it would make no difference to the state of affairs, that is the 1st Respondent would still have emerged with the majority of lawful votes cast.
In the prevailing circumstances, I sustain the second ground of objection in the preliminary objection raised by the 2nd Respondent.
Having upheld the second ground, there would be no need to go into resolving the first ground in the same objection, similarly there would also be no need resolving the preliminary objection raised by the learned counsel to the 1st Respondent, which in any case only touches on the first issue raised by the Appellants, whereas the resolved ground, touches on the entire appeal.
The learned counsel to the Appellants had urged us to hear the appeal on the merits, while the learned counsel to the 2nd Respondent argued that it would be a mere academic exercise to do so. Having held that no cause of action has been disclosed in the appeal against the 1st Respondent, in agreement with the learned counsel to the 2nd Respondent, considering the substantive appeal would be a mere academic exercise and I add, a waste of judicial time. The Supreme Court and indeed this Court in a plethora of cases frown at it, and instead discourage indulgence in an academic exercise that would bear no fruit, no matter the logic in such exercise. See the cases of NKWOCHA v. GOV. OF ANAMBRA STATE (1984) 1 S.C.N.L.R. 634, GOVERNOR OF KADUNA STATE v. DADA (1986) 4 NWLR (PART 38) 687/699, EZEANYA v. OKEKE (1995) 4 NWLR (PART 388) 142, 165 and MINISTRY OF WORKS v. TOMAS LTD. (2002) 2 NWLR (PART 752) 740 AT 790.
Having upheld the second ground of the 2nd Respondent’s preliminary objection, there would be no need to go into the merits of the appeal and the issues raised therein as same would be of no benefit to any of the parties. The resultant effect is and I hold that the purported appeal not having disclosed any cause of action would and is hereby struck out.
I award costs of N30,000.00 each in favour of the 1st and 2nd Respondents respectively.
STANLEY SHENKO ALAGOA, J.C.A.: I agree.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, C. N. Uwa, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment including order on Costs.
Appearances
A. A. Abimbola with A. Moronkeji and Tewo Lamuye For Appellant
AND
Kunle Adegoke with Tope Alabi Esq. for 1st Respondent.
Adewale Afolabi Esq. with Segun Olatoye Esq., Kolapo Alimi and V. A. Adeyanju (Miss) for the 2nd Respondent.
3rd – 14th Respondents absent and not represented even though served through counsel F. E. Abbe on 30/4/10. For Respondent
