OR v. HON KENNETH OBORO PREYOR & ORS In The Court of Appeal of Nigeria (2014)

HON. MORO REGINALD DONBRAYE & ANOR v. HON KENNETH OBORO PREYOR & ORS In The Court of Appeal of Nigeria

(2014)LCN/7462(CA)

On Wednesday, the 22nd day of January, 2014

CA/B/248/2012

RATIO

APPEAL: NOTICE OF APPEAL; WHAT THE NOTICE OF APPEAL SHALL SET FORTH

I found and perused the authority of Aderounmu V. Olowu as reported in (2000) 4 NWLR (pt. 652) 253. It had nothing to do with the wrong heading of a Notice of Appeal as in this appeal. The Supreme Court in that case, dealt with the formulation of grounds of appeal and restated the principle that: “The rules of appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of technicality, whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in the Supreme Court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side, of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form. What is important in a ground of appeal, and the test the court should apply, is whether or not an impugned ground shows clearly what is complained of as an error in law and what is complained of a misdirection or as the case may be, error of fact.” It is clear to me that the authority of Aderounmu V. Olowu (supra) relied upon by appellants’ learned counsel is inapposite and inapplicable to the circumstances of this appeal which was anchored on a wrong heading. Indeed, Order 6 Rules 2(1) of the Court of Appeal Rules, 2011 is to the effect that:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal) to be filed in the registry of the court below which shall set forth the grounds of appeal …”
This court, in Bayero V. Mainasara & Sons Ltd (2006) 8 NWLR (pt. 982) 391; (2006) 36 WRN 136; (2007) All FWLR (pt. 399) 1304, had held that:
“There is no doubt that a notice of appeal by the rule required to be filed at the registry of the lower court from where the appeal emanated.”
Further see Federal Airports Authority (Nig) V. Sylvester Nwoye (2012) 16 WRN 154 at 171 -173 (CA).
per. TOM SHAIBU YAKUBU, J.C.A.

APPEAL: NOTICE OF APPEAL; THE CONSEQUENCE OF DEFECTS AS TO NOTICE OF APPEAL

However, the question is whether the said notice of appeal reproduced earlier, is meant for this court. I answer the question in the negative.
The apex court, faced with not too dissimilar situation in Ababa & Anor V. Adeyemi (1976) NSCC 709 where there was a wrong heading of the Notice of Appeal, such that the Notice of Appeal was headed: “In the High court of Lagos State: In the Ikeja Judicial Division”; instead of “In the Supreme Court of Nigeria”; which was the situation when appeals laid to the Supreme Court of Nigeria, directly from the High Courts of the States, prior to the creation of the Court of Appeal as the intermediate court. Sir Udo Udoma, JSC, the learned law Lord delivering the judgment of the court upon a preliminary objection against the competence of the Notice of appeal aforesaid, likened it to a “wooden structure that was yet to get off the ground at all”. He concluded that: “At present, there is no appeal properly before this court. The defects as to Notice of Appeal are so fundamentally incurable that the only reasonable conclusion that can be, and which we have reached in the circumstances is that this appeal is incompetent. It is therefore struck out….”
However, this position of the law was later overruled by the Supreme Court in Nofiu Surakatu V. Nigeria Housing Development Society Ltd. (1981) NSCC 92; (1981) 4 SC 31, to the effect that a wrongly headed notice of appeal may be tolerated and allowed in the quest of the court to do substantial and not technical justice. Therefore, the learned and revered Fatai -Williams, CJN (as he then was) declared:
“For the avoidance of doubt, the judgment of the Supreme Court in Adis Ababa V. Adeyemi (1976) 12 SC 51 which considered that part of the decision in Moses V. Ogunlabi as unsatisfactory but followed it nevertheless is also overruled.”
The apex court, furthermore in Ekereke V The State (1981) NSCC 79 held that it was improper for this court to have struck out a wrongly headed notice of appeal, to wit: Federal Supreme Court” instead of “Federal Court of Appeal.” See also Udo V The State (1981) 6 -7 SC 157; Ekwere V. The State (1981) 9 SC 4; (1981) NSCC 298; Ikpasa V. Bendel State (1981) 9 SC 7; (1981) NSCC 300 -where a notice of appeal was wrongly filed on Civil Form instead of on Criminal Form 1 at the Court of Appeal, which was struck out, was held to have been improper and technical; Akpan Ekpeuib V. The State (1992) NSCC 143; Okonjo V. Odje (1985) 2 NSCC 1276; Clev Josh Ltd V. Tokimi (2008) 13 NWLR (pt. 1104) 422 at 439 -441 CA; and more recently, the unreported decision of this court -CA/B/147/2008: Joseph Chike Odogwu & Anor. V. Samuel Nwajei & 8 Ors. of 28th June, 2013 per Lokulo-Sodipe JCA. per. TOM SHAIBU YAKUBU, J.C.A.

APPEAL: NOTICE OF APPEAL; WHETHER DEFECTS IN A NOTICE OF APPEAL MAY VITIATE IT AND DEPRIVE THE APPELLATE COURT OF ITS JURISDICTION TO ENTERTAIN THE APPEAL
It must be noted however, that a notice of appeal, being an originating process for activating the jurisdiction of the appellate court to rehear the appellant’s appeal, is of critical importance such that every care and due diligence must be exercised by legal practitioners in preparing it. This is because of the fact that in appropriate situations, defects in a notice of appeal, may vitiate it and deprive the appellate court of its jurisdiction to entertain the appeal. Ralph Uwazuruike & Ors. V. Attorney General of the Federation (2007) 2 SCNJ 369. per. TOM SHAIBU YAKUBU, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER IS NOT PERMISSIBLE TO FORMULATE TWO OR MORE ISSUES FROM ONE GROUND OF APPEAL OR EVEN FORMULATE ISSUES FROM A SET OF GROUNDS OF APPEAL AND ANOTHER ISSUE FROM THE SAME SET OF GROUNDS OF APPEAL
It is this complexity and tardiness in the formulation and fixing of the issues to the grounds of appeal that is the problem and not the simplistic submission of appellants’ learned counsel that in so far as the issues for determination are only four compared to seven grounds of appeal, the said issues have not outnumbered the grounds of appeal.  The situation in this appeal, strange as it is, is not new. This court, in M.O. Sekoni V. UTC Nig Plc (2006) 8 NWLR (pt. 982) 283 at 298, paras. B – G, per Salami, JCA (as he then was) had this to say in a situation such as in the instant appeal:
“It is not permissible to canvass and tender argument by tripling the two issues.  Having divided into three the alleged two issues formulated and canvassed them separately it is not possible to consider the appeal properly and fairly. It is not the business of the court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the appellant’s brief of argument. See generally Bereyin v. Gbodo (1989) 1 NWLR (Pt. 970 372, 389, Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; (1987) 12 S.C. 14.” Therefore, whereas an issue is permitted to be distilled from a ground or more grounds of appeal, it is not permissible to formulate two or more issues from one ground of appeal or even formulate issues from a set of grounds of appeal and another issue from the same set of grounds of appeal as in this appeal. It breeds a miasma of confusion and the court had no business to separate the wood from the trees in determining the issues so mixed together.  Further see Ayo Fayose V. Independent Communication Network (2012) 19 WRN 146 at 168 -169 CA.
The law is that a ground of appeal is not to be split into two issues.  That is, a ground of appeal is not to carry two issues or put in another way, two issues are not to be formulated from a ground of appeal. See the more recent decision of the Supreme Court in Adekunle Teriba V. Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at 67.
Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See Odoemena Nwaigwe & Ors. V. Nze Edwin Okere (2008) 46 WRN 1; (2008) 5 SCNJ 256; (2008) 5 -6 SC (pt. II) 93; (2008) 8 SCM 128, Yadis (Nig)  Ltd. V. Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86; (2007) 10 SCM 183; (2007) 14 NWLR (pt. 1055) 584; (2007) All FWLR (pt. 370) 1348. per. TOM SHAIBU YAKUBU, J.C.A.

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY PROCEEDING
The paramountcy of jurisdiction and it being a threshold issue that must be settled by the court one way or the other, as soon as it is raised by any of the parties to an action or even by the court itself suo motu, cannot be over emphasized. This is because, jurisdiction is the lifeline of any action in court and where it is lacking, the court which disregards it when it is raised, and continues with the proceedings, only embarks on an exercise in futility because it would end up being a nullity in the appellate court. Odofin V. Agu (1992) 3 NWLR (pt. 229) 350; Petrojessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) 675 at 693; Oloba V. Akereja (1988) 3 NWLR (pt. 84) 508; Western Steel Works Ltd V. Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) 617. per. TOM SHAIBU YAKUBU, J.C.A.

STATUTE OF LIMITATION; ACTION THAT IS STATUTE BARRED; HOW TO DETERMINE WHETHER AN ACTION IS STATUTE-BARRED

Therefore a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.
The yardsticks to determine whether an action is statute-barred are:-
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purpose of the limitation law from the date the cause of action accrues. British Airways Plc. v. Akinyosoye (1995) 1 NWLR (Pt. 374) pg. 722; Shell Petroleum Development Co. (Nig) Ltd. V. Farah (1995) 3 NWLR (Pt. 382) pg. 148; Jallco Ltd. V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (pt. 391) pg. 534; Asaboro v. Pan Ocean Oil (Nig) Ltd. (2006) 4 NWLR (pt. 971) pg. 595; Ogunko v. Shelle (2004) 6 NWLR (Pt. 8868) pg. 17; Osun State Government v. Dalami Nigeria Ltd. (2007) All FWLR (Pt. 365) pg. 438; Akinkunmi v. Sadiq (2001) 2 NWLR (Pt. 696) pt. 101; FRN v. Associates Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) pg. 441; Obiefuna v. Okoye (1961) 1 SCNLR pg. 144.” per. TOM SHAIBU YAKUBU, J.C.A.

CONSTITUTIONAL LAW: POWERS OF THE HOUSE OF ASSEMBLY; THE PROVISION OF THE CONSTITUTION AS TO THE POWERS OF THE HOUSE OF ASSEMBLY AND WHETHER THERE IS ANY PART OF THE CONSTITUTION WHICH SUGGESTS THAT A HOUSE OF ASSEMBLY CAN “INDICT” ANY PERSON IN THE EXERCISE OF ITS POWERS

The provisions of Sections 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) are inter alia:
“128.(1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into –
(a) any matter or thing with respect to which it has power to make laws; and
(b) the conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged, with the duty of or responsibility for –
(i) executing or administering laws enacted by that House of Assembly, and
(ii) disbursing or administering moneys appropriated or to be appropriated by such House.
(2) The powers conferred on a House of Assembly under the provisions of this section are exercised only for the purpose of enabling the House to –
(a) make laws with respect to any matter within its legislative competence and correct any defeats in existing laws; and
(b) expose corruption, inefficiency or was tint eh execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
129.(1) For the purpose of any investigation under section 128 of  this Constitution, and subject to the provisions thereof, a House of assembly or a committee appointed in accordance with section 103 of this Constitution shall have power to –
(a) Procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examined all persons as witnesses whose evidence may b e material or relevant to the subject- matter;
(b) require such evidence to be given on oath;
(c) summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions; and
(d) issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to do so and  does not excuse such failure, refusal or neglect to the satisfaction of the House of Assembly or the committed, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons and also to impose such fine as may be prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.
(2) A summons or warrant issued under this section may be served or executed by any member of the Nigeria Police force or by any person authorized  in that behalf by the Speaker of the House of Assembly of the State.”
The intendment of the above provisions of the Constitution is clear and unambiguous. The purpose of the investigative power conferred on the House of Assembly under Section 128(2)(b) especially is to enable the House to  “expose corruption, inefficiency or waste in  the execution or administration of  laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”
Unarguably, there is nothing in Sections 128 and 129 of the 1999 Constitution which suggests that a House of Assembly can “indict” any person in the exercise of its powers thereof. per. TOM SHAIBU YAKUBU, J.C.A.

MEANING OF WORDS: INDICT AND INDICTMENT; THE MEANING OF ‘INDICT’ AND ‘INDICTMENT’

The words indict and indictment, each portend an imputation of crime and criminality against a person. They have been defined thus:
“Indict (in-dit), vb. To charge (a person) with a crime by formal legal process, esp. by grand-jury presentation -also formally spelled endite; indite.
“Indictment (in dit-ment) the formal written accusation of a crime. Made by a grand jury and presented to a court for prosecution against the accused person. See Fed. R. Crim. P. 7. (Cases: Indictment and Information 17. C.J.S Indictments and Information 28. 2. The act or process of preparing or bringing forward such a formal written accusation. Cf. INFORMATION; PRESENTMENT (2). See Black’s Law Dictionary, 8th Edition at page 788. per. TOM SHAIBU YAKUBU, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO EXPOUND THE LAW AND NOT TO EXPAND IT

Furthermore, it is trite law and unassailable legal principle that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication, with regard to the same subject matter. See Ogbuniyinya V. Okudo (1979) 6 – 9 SC 32; (1979) ANLR 105; (1979) 3 LRCN 318; (1979) 12 NSCC 77; Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (pt. 82) 280; (1988) 6 SCNJ 151; Udo V. Orthopedic Hospitals Management Board & 1 Or. (1993) 7 SCNJ (pt. 11) 436 at 444; (1993) 7 NWLR (pt. 304) 139; just to mention a few of the authorities on the point.
That is the essence of the principle of expressio est unis exclusio alterius. The Supreme Court, in Amaechi V. Independent National Electoral Commission (2008) 10 WRN 164; (2008) 1 SC (pt. 1) 136; (2008) 1 SCNJ 1; (2008) 1 MJSC; (2008) 5 NWLR (pt. 1080) 227 at page 437 stated succinctly that:
“The fundamental duty of the court is to expound the law and not to expand it. It must decide what the law is and not what it should be. Where the words used in couching the provisions are clear and unambiguous, they must be given their ordinary and grammatical meanings, no more. And although the judex must always have a resort to the intention of the legislators, that intention can only be found in the words used to frame the provisions and nowhere else.”
Therefore, since an investigative committee of a House of Assembly is not mentioned at paragraph 6(a) of Form C.F.001 aforementioned, the same cannot be an administrative panel of inquiry. per. TOM SHAIBU YAKUBU, J.C.A.

PRACTICE AND PROCEDURE: COUNTER ARGUMENT; WHETHER A PARTY THAT FAILS TO COUNTER ARGUMENT IS DEEMED TO HAVE CONCEDED THE NON-CONTESTED POINTS
It is settled that where an opponent, like the appellants herein, fails or neglects to counter arguments of his adversary in his brief of argument, the defaulting party is deemed to have conceded the non-contested points. Nwankwo V. Yar’Adua (2010) 3 SCNJ (pt. 1) 244; (2010) 12 NWLR (pt. 1209) 518; (2010) 45 WRN 1; Okongwu V. NNPC (1989) 7 SC (pt. 1) 127; (1989) 7 SCNJ 106; (1989) 4 NWLR (pt. 115) 296; (1989) 3 NSCC 118. per. TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. HON. MORO REGINALD DONBRAYE
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. HON KENNETH OBORO PREYOR
2. ACTION CONGRESS OF NIGERIA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. CLERK, DELTA STATE HOUSE OF ASSEMBLY
5. DELTA STATE HOUSE OF ASSEMBLY
6. COMMISSIONER OF POLICE, DELTA STATE Respondent(s)

TOM SHAIBU YAKUBU, J.C.A.: (Delivering the Leading Judgment): The appellants were the plaintiffs in suit No. FHC/ASB/CS/184/2011 at the Federal High Court, holden at Asaba, (simply referred to hereafter) as the court below.

The 1st appellant was a candidate of the 2nd appellant at the election into the Delta State House of Assembly as member representing the Bomadi Constituency, which was held on 26th April, 2011. At the end of the election, the 1st respondent was returned and declared as the winner thereof. This was challenged by the appellants at the National and State House of Assembly Election Tribunal, sitting at Asaba.
The petition was running its course when the appellants filed the action aforementioned at the court below vide an originating summons, challenging the qualification of the 1st respondent to contest the said election, on the complaint that the latter lied or misrepresented facts in Form C.F.001 submitted by him to the 3rd respondent for the purpose of contesting the election in violation of the provisions of Section 31(6) of the Electoral Act 2010 (as amended) and Section 107(1) (h) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The appellants, therefore prayed for some declaratory reliefs. The 1st respondent filed a preliminary objection to the hearing of the appellants’ action to the effect that the appellants’ action be struck out and/or dismissed for want of jurisdiction.

The grounds upon which the said preliminary objection was anchored were that:

“(1) The cause of action is spent and therefore proceeding with it will be an academic exercise.
(2) The claims of the plaintiffs are outside the jurisdiction of this honourable court.
(3) The cause of action is stated barred (sic) (statute-barred).
(4) The suit constitutes an abuse of court/judicial process.
(5) The facts of the case are hostile and therefore originating summons is not the proper method of initiating this suit.
(6) At the hearing of this objection, the 1st Defendant/Applicant shall rely on other legal and equitable grounds not spelt out above.”

Both learned counsel to the respective parties filed written addresses with respect to the 1st respondent’s preliminary objection. Each counsel also filed written addresses with respect to the appellants’ originating summons. In his judgment, the learned trial judge, in the main found for the respondents, to the effect that the 3rd respondent being a public officer was protected under Section 2(a) of the Public Officers Protection Act because the appellants’ action was not filed within three months from the accrual date of the cause of action. Furthermore, that the appellants’ action was tantamount to an abuse of the process of court in view of the petition in respect of the same election pending at the election tribunal. The learned trial judge came to the conclusion that the appellants’ action qualified for a striking out for want of jurisdiction and also qualified for a dismissal for being statute-barred and/or abuse of court process. Thus, the preliminary objection succeeded essentially.
With respect to the originating summons, the learned trial judge dismissed it. Hence this appeal is against the success of the 1st respondent’s preliminary objection and also the dismissal of the appellants’ suit/originating summons.

The appeal is predicated on seven grounds of appeal, which shorn of their particulars each say:

“GROUND ONE:
The Learned Trial Judge erred in law when he held that the Plaintiffs/Appellants’ case was statute barred by virtue of the provisions of section 2(a) of the Public Officers Protection Act.

GROUND TWO
The Learned Trial Judge erred in law when he held that the Plaintiffs/Appellants’ case constituted an abuse of court process in view of the case pending at the Election Petition Tribunal when the case was filed.

GROUND THREE
The Learned Trial Judge misdirected himself in law and thereby came to a wrong conclusion when he held that Section 107(1)(h) of the 1999 Constitution (as amended) provided thus:

“Section 107(1) No person shall be qualified for election to a House of Assembly if:

(h) he has been indicted for embezzlement or fraud by a judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunal Inquiry Act, a Tribunal of inquiry law or any other law by the Federal and State Government which indictment has been accepted by the Federal Government respectively;”

GROUND FOUR
The Learned Trial Judge erred in law when he held as follows:

“In the instant case, the purported indictment of the 1st Defendant was by Joint Committees of Delta State House of Assembly. Therefore that Joint committees of Delta State House of Assembly cannot by an imagination amount to a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or Tribunal set up under the Tribunals of Inquiry Act/Law, Section 107(1)(h) thereof is not applicable to this case.”

GROUND FIVE
The Learned Trial Judge misdirected himself in law and thereby came to a wrong conclusion when he held thus:

“Under Section 107(1)(h) thereof for purposes of indictment, section 107(1)(h) thereof is still not applicable to this case. It is a fundamental requirement of the said section that for an indictment to be operative against a person such as the 1st Defendant, the indictment must be accepted by the Federal or State Government usually through a white paper.”

GROUND SIX
The Learned Trial Judge erred in law when he held that 1st Defendant/Respondent did not lie on oath when he stated in form C.F. 001 that he had never been indicted.

GROUND SEVEN
The judgment is against the weight of evidence.”

In order to prosecute the appeal and pursuant to the rules of this court, the appellants’ brief of argument settled by A.M. Oriakhi, Esq., was dated and filed on 31st December, 2012. In it, four issues were distilled for determination thus:

“(i) Whether the Learned Trial Judge was right when he held that the case of the Appellants was statute-barred and amounted to an abuse of court process (Grounds 1 and 2)
(ii) Whether the Learned Trial Judge was right when he held that the joint investigation committees of the Delta State House of Assembly did not amount to an administrative panel of inquiry (Grounds 3 and 4).
(iii) Whether the Learned Trial Judge properly evaluated the case of the Appellants in the light of the clear provisions of Section 107(1)(h) of the constitution of the Federal Republic of Nigeria 1999 (as amended) before coming to the conclusions he made (Grounds 5 -7).
(iv) Whether the Learned Trial Judge was right when he dismissed the case of the Appellants as unmeritorious. (Grounds 3 -7)”.

The appellants also filed a Reply brief of argument on 26th March, 2013 and a Reply brief to 1st respondent’s notice that the judgment of the court below be affirmed on other grounds than those relied upon by the court below. At the hearing of the appeal on 6th Nov, 2013, learned counsel to the appellants, adopted and relied on all the processes above mentioned.
The 1st respondent’s brief of argument which was settled by F.T. Okorotie, Esq., and dated 6th June, 2013 was filed on 10th June, 2013. The 1st respondent had earlier filed a notice of preliminary objection to the hearing of the appeal, dated 14th January, 2013 on 26th February, 2013. The same was argued at paragraph 3.00 to 4.14 of his brief of argument. The said notice of preliminary objection, for ease of reference and appreciation say, to wit:

“NOTICE OF PRELIMINARY OBJECTION
Brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Honourable Court.
TAKE NOTICE that the 1st Respondent/applicant shall at the hearing of this appeal raise preliminary objection to the competence of the appeal as well as issues for determination Nos. ii, iii and iv in the Appellants; Brief of Argument and will therefore urge this Honourable Court to strike out or dismiss same for want of jurisdiction.
TAKE FURTHER NOTICE that the grounds for the said objection are as follows:

(1) There is no competent Notice of Appeal filed by the Appellants to sustain the appeal.
(2) The Notice of Appeal filed by the Appellants is fundamentally defective and incurably bad.
(3) There is no valid Notice of Appeal before the Court of Appeal.
(4) The Appellants filed 7 grounds of appeal in their Notice of Appeal.
(5) The Appellants distilled issues for determination Nos. ii and iii from grounds of appeal Nos. 3 and 4 and 5 -7 respectively.
(6) The Appellants further distilled issue for determination No. iv from the same grounds 3 -7.
(7) It is trite law that a party cannot formulate more issues than one from a ground of appeal.
(8) Issues for determination Nos. ii, iii and iv distilled from the same grounds 3- 7 are incompetent and must be struck out.”

Two issues for determination were raised in the preliminary objection, inter alia:

“(1) Whether this Honourable court has jurisdiction to entertain this appeal having regards to the incompetent Notice of Appeal.
(ii) Whether issues for determination Nos. ii, iii and iv distilled from grounds 3 -7 of the Appellants’ grounds of appeal are competent?”

Learned counsel to the 1st respondent also filed a respondent’s notice that the judgment be affirmed on other grounds than those relied upon by the court below. This was with leave of court granted on 10th January, 2013. He then filed the 1st respondent’s brief of argument in respect of the 1st respondent’s notice aforesaid. And at the hearing, he adopted all the processes above mentioned that were filed by him.

It is expedient to deal with the preliminary objection and determine it first. The attack by the 1st respondent on the appellants’ notice of appeal firstly is that it is incurably bad and invalid and the appeal is therefore rendered incompetent. He referred to Agu V. Odofin (1992) 3 SCNJ 161 at 172 -173; Adeleke V. Ecu-Line NV (2006) 12 NWLR (pt. 993) 33 at 56 SC; Mohammed V. M.E. Co. Ltd (2010) 2 NWLR (pt. 1179) 473 at 487; Aderibigbe & Anor V. Abidoye (2009) 4 -5 SC (pt. 3) 123; Oge V. Ede (1995) 3 NWLR (pt. 385) 568; Anadi V. Okoh (1977) 7 SC 57 at 58; Kano Plastic Ltd. V. Century Merchant Bank (1998) 3 NWLR (pt. 543) 569; Vibelko (Nig) Ltd. & Anor. V. N.D.I.C (2003) FWLR (pt. 179) 1230 at 1235 -1236.
Furthermore, learned 1st respondent’s counsel submitted that where a Notice of appeal is not properly filed in the court below, the Court of Appeal is devoid of competence to entertain the appeal on its merits. He relied on CBN V. Beckiti Const. Ltd (2011) 5 NWLR (pt. 1240) 203 at 223; Amadi V. Okoli (1977) 7 SC 57.
Learned counsel referred to pages 283 -289 of the record of appeal whereat, the Notice of appeal is titled, to wit:

“IN THE FEDERAL HIGH COURT
IN THE ASABA JUDICIAL DIVISION
HOLDEN AT ASABA”

The above, according to the 1st respondent’s learned counsel is not a Notice of Appeal before this court as it is incurably bad and the fundamental defects therein invalidates it ab initio, as nothing can stand on nothing. He placed reliance on Macfoy V. UAC Ltd (1961) 3 W.L.R 1405 at 1409.
He insisted that any appeal predicated on an invalid notice of appeal is incompetent as there is no appeal upon which the case is predicated. He referred to Sam Farm Financiers Ltd. V. Aina (2003) FWLR (pt. 159) 1482 at 1494; Mobile Oil (Nig) Plc V. Rabiu & Anor (2003) FWLR (pt. 149) 1546 at 1555; UNB Plc V. Declag Ltd. & Anor (2004) All FWLR (pt. 228) 606 at 626.

With respect to issue (ii), 1st respondent’s counsel submitted that the appellants distilled issues ii and iii from their grounds 3 & 4 and 5 -7 respectively.  Thereafter, the appellants again distilled issue iv from the same grounds 3 -7.  He contended that the law does not permit a distillation of more than one issue from a ground of appeal. He referred to Atanda V. Ajayi (1989) 3 NWLR (pt. 111) 511; Alhaji Ibrahim Atanyi & Ors. V. Military Governor, Plateau State & Anor (2002) FWLR (pt. 89) 1168 at 1187; Mr. Yohana V. Federal Republic of Nigeria (2002) FWLR (pt. 90) 1433 at 1439; Kotun V. Olasewere (2009) All FWLR (pt. 477) 41 at 53; A. P. V. Owodunni (?) 15 NSQR 308 at 328.
1st respondent’s learned counsel further submitted that the formulation of more issues from grounds 3 -7 of the grounds of appeal rendered issues ii, iii & iv patently bad and thus incompetent.  He relied on Agbaotu v. Brisibe (2005) All FWLR (pt. 251) 1454 at 1464 -1465; D.E.N.R. Ltd V. Trans International Bank Ltd. (2009) All FWLR (pt. 456) 1823.
Furthermore, it is the contention of the 1st respondent’s learned counsel that it is not the business of the court to carry out a surgical operation to cut away the arguments relating to the incompetent issues, but rather that such issues be declared incompetent and struck out.  He placed reliance on Laah V. Opaluwa (2004) 9 NWLR (pt. 879) 558 at 570 & 573 -574; Bereyin V. Brown Gbobo (1989) 1 NWLR (pt. 97) 372 at 380; Uwazuruike V. Nwachukwu (2013) 3 NWLR (pt. 1342) 503 at 517 -518.

In respect to the 1st respondent’s preliminary objection aforementioned, the appellants’ Reply brief of argument dated 22nd March, 2013 was filed on 26th March, 2013. This was argued at paragraphs 1.0 to 2.3 thereof.
Appellant’s learned counsel submitted that the Notice of Appeal was headed in the “Federal High Court” because the appeal emanated from that court. He relied on Order 6 Rule 2(1) of the Court of Appeal Rules, 2011; and that a Notice of Appeal filed at the court below is essentially a process of that court which is to be transmitted to the appellate court. He submitted that a Notice of appeal cannot be struck out because of the heading of the said Notice. He placed reliance on Aderounmu V. Olowu (2000) 2 SCNJ 180 at 190.
Appellants’ learned counsel submitted in the alternative that assuming but without conceding that the Notice of Appeal ought to have been headed in the Court of Appeal, the objection is as to form and not substance and that the 1st respondent was in no way misled or prejudiced by the said Notice nor will any miscarriage of justice be occasioned by it. He referred to Justice Party V. INEC (2006) All FWLR (pt. 339) 907 at 931.

Regarding the second leg of the preliminary objection, learned appellants’ counsel submitted that while it is the law that a party cannot formulate more issues than one from a single ground of appeal, there is no law which forbids a party from formulating an issue from two or more grounds of appeal. He referred to C.O.E. Ekiadolor V. Osayande (2011) All FWLR (pt. 566) 504 at 505. That in this appeal, the appellants formulated four issues only from the seven grounds of appeal and that the fourth issue was properly distilled from grounds 3 -7 of the grounds of appeal, having regard to the complaints raised in those grounds.

Resolution of Preliminary Objection.
The appellants’ Notice and Grounds of Appeal are at pages 283-288 of the record of appeal. The said notice of appeal is headed inter alia:

“IN THE FEDERAL HIGH COURT
IN THE ASABA JUDICIAL DIVISION
HOLDEN AT ASABA”

The said notice of appeal was filed at the registry of the Federal High Court, Asaba on 27th July, 2012.
Unarguably, in my considered opinion, the Notice of appeal is wrongly headed. I am not impressed nor persuaded by the argument of the learned appellants’ counsel that the said notice was rightly headed in the Federal High Court because the appeal emanated from that court. That is inconceivable. It is like saying that in drawing up a notice of appeal say against a judgment of this court to the Supreme Court, the appellants would head the notice of appeal as In the Court of Appeal, Benin Judicial Division, Holden at Benin City. What an absurdity and tardiness?
I was quick to look for and read the authority of Aderounmu v. Olowu (2000) 2 SCNJ 180 at 190, relied upon by learned appellants’ counsel when he submitted that “once a Notice of Appeal satisfies the requirements of Order 6 rule 2 of the Court of Appeal Rules, 2011, it cannot be struck out on the basis of the heading of the Notice”. I found and perused the authority of Aderounmu V. Olowu as reported in (2000) 4 NWLR (pt. 652) 253. It had nothing to do with the wrong heading of a Notice of Appeal as in this appeal. The Supreme Court in that case, dealt with the formulation of grounds of appeal and restated the principle that:

“The rules of appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of technicality, whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in the Supreme Court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side, of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form. What is important in a ground of appeal, and the test the court should apply, is whether or not an impugned ground shows clearly what is complained of as an error in law and what is complained of a misdirection or as the case may be, error of fact.”

It is clear to me that the authority of Aderounmu V. Olowu (supra) relied upon by appellants’ learned counsel is inapposite and inapplicable to the circumstances of this appeal which was anchored on a wrong heading.

Indeed, Order 6 Rules 2(1) of the Court of Appeal Rules, 2011 is to the effect that:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal) to be filed in the registry of the court below which shall set forth the grounds of appeal …”
This court, in Bayero V. Mainasara & Sons Ltd (2006) 8 NWLR (pt. 982) 391; (2006) 36 WRN 136; (2007) All FWLR (pt. 399) 1304, had held that:
“There is no doubt that a notice of appeal by the rule required to be filed at the registry of the lower court from where the appeal emanated.”
Further see Federal Airports Authority (Nig) V. Sylvester Nwoye (2012) 16 WRN 154 at 171 -173 (CA).
There is no doubt that the notice of appeal herein was properly filed at the court below. However, the question is whether the said notice of appeal reproduced earlier, is meant for this court. I answer the question in the negative.
The apex court, faced with not too dissimilar situation in Ababa & Anor V. Adeyemi (1976) NSCC 709 where there was a wrong heading of the Notice of Appeal, such that the Notice of Appeal was headed:
“In the High court of Lagos State:
In the Ikeja Judicial Division”; instead of “In the Supreme Court of Nigeria”; which was the situation when appeals laid to the Supreme Court of Nigeria, directly from the High Courts of the States, prior to the creation of the Court of Appeal as the intermediate court.
Sir Udo Udoma, JSC, the learned law Lord delivering the judgment of the court upon a preliminary objection against the competence of the Notice of appeal aforesaid, likened it to a “wooden structure that was yet to get off the ground at all”. He concluded that:
“At present, there is no appeal properly before this court. The defects as to Notice of Appeal are so fundamentally incurable that the only reasonable conclusion that can be, and which we have reached in the circumstances is that this appeal is incompetent. It is therefore struck out….”
However, this position of the law was later overruled by the Supreme Court in Nofiu Surakatu V. Nigeria Housing Development Society Ltd. (1981) NSCC 92; (1981) 4 SC 31, to the effect that a wrongly headed notice of appeal may be tolerated and allowed in the quest of the court to do substantial and not technical justice. Therefore, the learned and revered Fatai -Williams, CJN (as he then was) declared:
“For the avoidance of doubt, the judgment of the Supreme Court in Adis Ababa V. Adeyemi (1976) 12 SC 51 which considered that part of the decision in Moses V. Ogunlabi as unsatisfactory but followed it nevertheless is also overruled.”
The apex court, furthermore in Ekereke V The State (1981) NSCC 79 held that it was improper for this court to have struck out a wrongly headed notice of appeal, to wit: Federal Supreme Court” instead of “Federal Court of Appeal.” See also Udo V The State (1981) 6 -7 SC 157; Ekwere V. The State (1981) 9 SC 4; (1981) NSCC 298; Ikpasa V. Bendel State (1981) 9 SC 7; (1981) NSCC 300 -where a notice of appeal was wrongly filed on Civil Form instead of on Criminal Form 1 at the Court of Appeal, which was struck out, was held to have been improper and technical; Akpan Ekpeuib V. The State (1992) NSCC 143; Okonjo V. Odje (1985) 2 NSCC 1276; Clev Josh Ltd V. Tokimi (2008) 13 NWLR (pt. 1104) 422 at 439 -441 CA; and more recently, the unreported decision of this court -CA/B/147/2008: Joseph Chike Odogwu & Anor. V. Samuel Nwajei & 8 Ors. of 28th June, 2013 per Lokulo-Sodipe JCA.

In the circumstances, although the appellant’s notice of appeal is fundamentally defective because it is wrongly headed, I will tolerate it in order to do substantial justice to the parties, on the merits of the appeal.
It must be noted however, that a notice of appeal, being an originating process for activating the jurisdiction of the appellate court to rehear the appellant’s appeal, is of critical importance such that every care and due diligence must be exercised by legal practitioners in preparing it. This is because of the fact that in appropriate situations, defects in a notice of appeal, may vitiate it and deprive the appellate court of its jurisdiction to entertain the appeal. Ralph Uwazuruike & Ors. V. Attorney General of the Federation (2007) 2 SCNJ 369.

With respect to the second leg of the 1st respondent’s preliminary objection, it is manifestly obvious that whilst the appellants’ issues ii and iii were distilled from grounds 3 & 4 and 5 -7 respectively; issue iv was again distilled from grounds 3 -7 of the same grounds of appeal. The nagging question is, if issue iii is tied to grounds 5 -7; can issue iv be tied also to the same grounds 5 -7? Furthermore, if issue ii is tied to grounds 3 & 4, how and who should separate the arguments in respect of that issue from issue iv which is equally tied to ground 3 -7?
It is this complexity and tardiness in the formulation and fixing of the issues to the grounds of appeal that is the problem and not the simplistic submission of appellants’ learned counsel that in so far as the issues for determination are only four compared to seven grounds of appeal, the said issues have not outnumbered the grounds of appeal. The situation in this appeal, strange as it is, is not new.

This court, in M.O. Sekoni V. UTC Nig Plc (2006) 8 NWLR (pt. 982) 283 at 298, paras. B – G, per Salami, JCA (as he then was) had this to say in a situation such as in the instant appeal:
“It is not permissible to canvass and tender argument by tripling the two issues.  Having divided into three the alleged two issues formulated and canvassed them separately it is not possible to consider the appeal properly and fairly. It is not the business of the court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the appellant’s brief of argument. See generally Bereyin v. Gbodo (1989) 1 NWLR (Pt. 970 372, 389, Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; (1987) 12 S.C. 14.”
Therefore, whereas an issue is permitted to be distilled from a ground or more grounds of appeal, it is not permissible to formulate two or more issues from one ground of appeal or even formulate issues from a set of grounds of appeal and another issue from the same set of grounds of appeal as in this appeal. It breeds a miasma of confusion and the court had no business to separate the wood from the trees in determining the issues so mixed together.  Further see Ayo Fayose V. Independent Communication Network (2012) 19 WRN 146 at 168 -169 CA.
The law is that a ground of appeal is not to be split into two issues.  That is, a ground of appeal is not to carry two issues or put in another way, two issues are not to be formulated from a ground of appeal. See the more recent decision of the Supreme Court in Adekunle Teriba V. Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at 67.
Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See Odoemena Nwaigwe & Ors. V. Nze Edwin Okere (2008) 46 WRN 1; (2008) 5 SCNJ 256; (2008) 5 -6 SC (pt. II) 93; (2008) 8 SCM 128, Yadis (Nig)  Ltd. V. Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86; (2007) 10 SCM 183; (2007) 14 NWLR (pt. 1055) 584; (2007) All FWLR (pt. 370) 1348.

In the end, I am in agreement with the contention of learned 1st respondent’s counsel that issues ii, iii & iv are incompetent along with grounds 3, 4, 5, 6 & 7 of the grounds of appeal, which are each struck out. However, that is not the end of the road for this appeal. Issue I is clearly competent having been distilled from grounds 1 and 2 which I must consider and determine. Therefore, this court being an intermediate/penultimate court, I am still bound to consider all the issues in the appeal, albeit, that l have struck out issues ii, iii & iv. This is so, so that the apex court will know my decision on those issues. Bala V. Dikko (2013) 4 NWLR (pt. 1343) 52 at 61; Federal Ministry of Health & Anor. V. Comet Shipping Agencies Ltd. (2009) 4 SCNJ 173; Central Bank V. Katto (1994) 43 NWLR (pt. 339) 446.

Issue No. 1.
The contention of the appellants is that the statute of limitation such as the Public officers Protection Act is a special defence which ought to have been pleaded and raised by the 3rd -5th respondents. He relied on Ajila V. Lawal (2005) All FWLR (pt. 278) 1158 at 1169; Ariori V. Elemo (1983) NSCC (Vol. 14) 1 at 8 and that in Hassan v. Aliyu (2010) 17 NWLR (pt. 1223) 547 relied upon by the learned trial judge, the said defence was specifically pleaded by the Independent National Electoral Commission (INEC) who was one of the respondents in that case.
Learned appellants’ counsel submitted that the case of the appellants centered on the interpretation of Section 107(1)(h) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that being the situation no suit with respect to such an interpretation could be statute-barred. He referred to Obi-Akejule V. Delta State Government (2009) All FWLR (pt. 466) 2009 at 2012 -2022.
With respect to the filing of the appellants’ suit at the court below when the appellants had a pending election petition at the National & State Houses of Assembly Election Petition Tribunal, on the same election of 26th April, 2011; appellants’ learned counsel contended that there was no abuse of the court’s process because the suit at the court below was in relation to a pre-election matter. And that by virtue of Section 251(1)(q) & (r) of the 1999 Constitution, the court below is vested with the jurisdiction to hear and determine the said suit. He referred to Peter Obi V. INEC (2009) EPR 370 at 416 -417; Amaechi V. INEC (2009) EPR 90 at 169. Learned counsel insisted that the appellants were perfectly in order when they bonafide, exercised their right in filing the aspect of their action at the court below. He referred to Minister for Works and Housing V. Thomas Nigeria Ltd. (2002) FWLR (pt. 124) 456 at 487.

1st Respondent’s learned counsel, arguing this issue submitted that there being no contention that the 3rd respondent is a public officer, it is protected against suits which are filed against her after three months of the accrual of a cause of action. He contended that since that finding of fact by the court below, was not appealed against by the appellants, they remain bound by that finding. He placed reliance on Anike V. SPDCN Ltd. (2011) 7 NWLR (pt. 1246) 227 at 241; Iyoho V. Effiong (2007) 30 NSCQR 20 at 232.
1st Respondent’s learned counsel further submitted that the issue of jurisdiction can be raised by any of the parties in an action or by the court and once it is so raised, the court must examine it and rule on it. He placed reliance on Obiuweubi V. CBN (2011) 7 NWLR (pt. 1247) 465 at 494 SC; Ayeni V. Obasa (2011) All FWLR (pt. 586) 488 at 499 CA; Nuhu V. Ogele (2003) 18 NWLR (pt. 852) 251 at 279 SC; Nasir V. C.S.C. Kano Ltd. (2010) 6 NWLR (pt. 1190) 253 at 276 SC; Galadima V. Tambai (2006) 2 SC (pt. 1) 196 at 207.
Referring to the authority of Hassan V. Aliyu (supra) 1st respondent’s counsel submitted that the preliminary objection to the effect that the action was statute barred and therefore vitiates the court’s jurisdiction was raised by the 1st respondent therein and not INEC as contended by the appellants herein.
With respect to the appellants’ contention that the appellants’ suit at the court below centered on the interpretation of Section 107(1)(h) of the 1999 Constitution, learned 1st respondent’s counsel submitted that, that was not the position. He said the appellants’ claim was for a declaration that the 1st appellant be declared the winner of the 26th April, 2011 election in question on the ground that the 1st respondent lied on oath and presented a forged certificate to the 3rd respondent in contravention of Section 107(1)(h) of the 1999 Constitution.
Furthermore, it is the submission of learned counsel that the essence of the Public Officers (Protection) Act vides Section 2(a) thereof is that any action against a Public officer who defaulted in the performance of his duty, must be commenced within three months of the act, neglect or default. He referred to Ibrahim V. JSC (1999) 14 NWLR (pt. 584) 1 at 31; Fadare V. A.G. Oyo State (1982) 4SC 1 at 12. And that in the circumstances of this case, the appellants ought to have commenced their action against the 3rd respondent within three months from January, 2011 when the 1st respondent submitted Exhibit E to the 3rd respondent or when the latter declared and returned the 1st respondent as the winner of the election in question which was held on 26th April, 2011.

Responding to the question of the abuse of the court’s process by the appellants, learned counsel to the 1st respondent, submitted that the election petition filed by the appellants was to the effect that the 1st appellant be declared as the winner of that election held on 26th April, 2011. And the said election petition was pending, when the suit at the court below was filed. According to 1st respondent’s learned counsel, the two actions were filed by the appellants to achieve the same aim and purpose which was to declare the 1st appellant as the winner of the aforementioned election; which is tantamount to an improper use of judicial/court’s process by litigants. He relied on CBN V. Ahmed (2001) 11 NWLR (pt. 724) 369 at 409; Cedar Stationary Products Ltd. V. IBWA Ltd (2000) FWLR (pt. 25) 1710 at 1724 CA; Egwasim & Anor. V Ojichie & Anor (2004) 10 NWLR (pt. 882) 613 at 624; ACB Plc V. Nwaigwe & 2 Ors. (2011) 1 -2 SC (pt. II) 67 at 81 -82; Ali V. Albishir (2008) 3 NWLR (pt. 1073) 94 at 143; Min. of Works & Housing V. Tomac (Nig) Ltd (2002) 2 NWLR (pt. 752) 740.

Resolution of Issue 1.
The paramountcy of jurisdiction and it being a threshold issue that must be settled by the court one way or the other, as soon as it is raised by any of the parties to an action or even by the court itself suo motu, cannot be over emphasized. This is because, jurisdiction is the lifeline of any action in court and where it is lacking, the court which disregards it when it is raised, and continues with the proceedings, only embarks on an exercise in futility because it would end up being a nullity in the appellate court. Odofin V. Agu (1992) 3 NWLR (pt. 229) 350; Petrojessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) 675 at 693; Oloba V. Akereja (1988) 3 NWLR (pt. 84) 508; Western Steel Works Ltd V. Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) 617.

Unarguably, the challenge to the jurisdiction of the court below vide the notice of preliminary objection at the instance of the 1st respondent against the appellants’ suit, predicated on Section 2(a) of the Public Officers Protection Act with respect to the 3rd respondent, is intended to scuttle or abort the hearing and determination of the said suit on its merits. Hence it is trite that as soon as the question of jurisdiction is raised in any suit, by any of the parties or even by the court suo motu, it must be considered and determined in order to save time and costs and most importantly so as to avoid a trial being declared a nullity. The apex court in Petrojessica Enterprises Ltd. V. Leventis Technical Co. Ltd (supra), had this to say of the radical nature and importance of jurisdiction to adjudication, at page 693 thus:
“Jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial, on appeal to the Court of Appeal or to this court (Supreme Court) a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on the issue of jurisdiction but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and so avoid a trial in nullity”.

From the above, it is glaring that the learned appellants’ counsel was patently in error when he submitted that since the 3rd – 5th respondents did not raise the objection to the jurisdiction of the court below with respect to the appellants’ suit, it did not lie in the mouth of the 1st respondent to have done so. The 1st respondent being a party in the suit was perfectly entitled to raise the preliminary objection as he did. And even if the court below itself had so done, it too would have been perfectly in order to so do.
The authority of Hassan V. Aliyu (supra) was certainly misunderstood by the appellants’ learned counsel. For, it was not INEC who was also a respondent in that case who raised it, but Aliyu, who was the 1st respondent in that case.

Let us now turn our attention to the limitation law in question, that is, the Public Officers (Protection) Act. Section 2 (a) of the said Act provides a time frame within which a public officer such as the 3rd respondent, must be sued if any aggrieved person feels dissatisfied with any act, default or neglect, in the performance of the 3rd respondent’s official duties. And it is that such suits must be filed within three months of the act, default or neglect in question and if it is a continuing injury, the suit must be filed, within three months after it has ceased.

The quintessence of a limitation law such as the Public Officers (Protection) Act, was re-echoed by the Supreme Court recently, per my Lord, Adekeye, JSC in Dr. Tosin Ajayi V. Princess (Mrs) Olajumoke Adebiyi & Ors. (2012) 5 SCNJ (pt.II) 458 at 480 – 481, to wit:
“The essence of a limitation law is that the legal right to enforce an action is not perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.

Therefore a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.
The yardsticks to determine whether an action is statute-barred are:-
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purpose of the limitation law from the date the cause of action accrues.
British Airways Plc. v. Akinyosoye (1995) 1 NWLR (Pt. 374) pg. 722; Shell Petroleum Development Co. (Nig) Ltd. V. Farah (1995) 3 NWLR (Pt. 382) pg. 148; Jallco Ltd. V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (pt. 391) pg. 534; Asaboro v. Pan Ocean Oil (Nig) Ltd. (2006) 4 NWLR (pt. 971) pg. 595; Ogunko v. Shelle (2004) 6 NWLR (Pt. 8868) pg. 17; Osun State Government v. Dalami Nigeria Ltd. (2007) All FWLR (Pt. 365) pg. 438; Akinkunmi v. Sadiq (2001) 2 NWLR (Pt. 696) pt. 101; FRN v. Associates Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) pg. 441; Obiefuna v. Okoye (1961) 1 SCNLR pg. 144.”

The relevant reliefs in the appellants’ originating summons are contained at paragraphs 6 and 8 thereof, to wit:

“6. An order of this Honourable Court directing the 3rd Defendant to withdraw and cancel forthwith the certificates of return issued to the 1st Defendant in respect of the April 26, 2011 Election into the Delta State House of Assembly for the Bomadi Constituency.

7. ………………………………………………………….

8. An order directing the 3rd Defendant to issue forthwith a certificate of return to the 1st plaintiff as the elected member representing Bomadi Constituency in the Delta State House of Assembly having contested the April 26, 2011 Election and scored the highest number of valid votes among the qualified candidates that contested the said Election.”

The said reliefs are consequent upon the depositions in paragraphs 8, 9, 16, 17, 18, 19 of the affidavit in support of the originating summons, as it relates to the 3rd respondent who was the 3rd Defendant at the court below. Therefore, it is clear that the cause of action arose sometimes about 26th April, 2011 when the 3rd respondent declared and returned the 1st respondent as the winner of the election in question and also issued him with a certificate of return as the elected member of the Delta State House of Assembly representing Bomadi Constituency. The suit was filed at the court below on 4th August, 2011. It is manifest that the period from 26th April, 2011 to 4th August, 2011 is more than three months. Herein lies the contention of the 1st respondent that the appellants’ suit is statute barred, against the 3rd respondent, having not been sued within three months from 26th April, 2011. Williams V. Williams (2008) 5 SCNJ 156 at 166; Aremo II V. Adekanye (2004) 13 NWLR (pt. 891) 572; Texaco Panama Corp. V. Shell (2002) 2 SC (Pt.II) 1 at 25; Danladi Baido V. INEC & Ors. (2012) 31 WRN 27 at 97-98, CA.

I have considered the authorities of Atago V. Nwuche (2013) 3 NWLR (pt. 1341) 337 at 360 and Uwazuruike V. Nwachukwu (2013) 3 NWLR (pt. 1342) 503 at 528 relied upon by the appellants in their Reply brief of argument at paragraphs 3.0 to 3.4 thereof to the effect that time does not run out against an action predicated on a pre-election matter, particularly by virtue of Section 87(9) of the Electoral Act, 2010, as amended. I have perused the said authorities painstakingly and none of them has the same or similar facts as those in the instant case. In the first place, the suits in each of them were filed prior to the conduct of the elections in question, so they were clearly pre-election matters or suits. However, in the instant case, the appellants’ suit was filed after the 26th April, 2011 election, hence it became a post-election suit which the court below had no jurisdiction to determine. Furthermore, in none of the two cases in question was the issue of a limitation law like the Public Officers (Protection) Act raised, canvassed and decided upon. The two cases, are therefore, clearly inapposite.

With respect to the question of the abuse of court’s process by the appellants for filing the suit herein at the court below when an election petition filed by them was pending at the National and State Houses of Assembly Election Petition Tribunal, holden at Asaba, I have perused the initiating processes and the reliefs claimed in each of them. For the Election Petition No. EPT/DT/HA/16/2011, it is at pages 165 -183 of the records of appeal. It was fled on 13th May, 2011.
The appellants originating summons herein, in suit No. FHC/ASB/CS/184/2011 at pages 2 -121 of the record of appeal, was filed at the court below on 4th August, 2011. In the election petition, the 1st petitioner was Hon. Moro Reginald Donbraye whilst the 2nd petitioner was the Peoples Democratic Party.
The 1st respondent in the petition was Independent National Electoral Commission; the 2nd respondent was Engr. Oboro K. Preyor whilst the 3rd respondent was Action Congress of Nigeria (ACN).
In the suit No. FHC/ASB/CS/184/2011, the two petitioners in the petition aforementioned were the plaintiffs in the action at the court below. So also, the three respondents in the aforementioned petition, were the 3rd, 1st and 2nd defendants, respectively in the action at the court below. The new parties in the action at the court below, who did not feature as parties in the election petition aforesaid, are the 4th, 5th and 6th respondents herein.
In the circumstances, it would be playing on words to submit as the learned counsel to the appellants did, that the parties in the two proceedings are not the same. I am of the opinion that adding the 4th, 5th and 6th respondents at the appellants’ suit at the court below was just a smokescreen, because those parties are nominal and had nothing to do directly with the conduct of the April, 2011 election in question.
I have perused the reliefs claimed by the appellants as plaintiffs in their suit at the court below vis-a-vis their reliefs sought in the petition aforesaid and it is ex facie, abundantly clear that the aim and target of each of them is to withdraw the certificate of return as member representing the Bomadi Constituency at the Delta State House of Assembly which was issued to the 1st respondent from him and the 1st appellant be declared and returned as the member of the Delta State House of Assembly, representing Bomadi Constituency. Is it a case of robbing Peter to pay Paul? I wonder. If the filing of the appellants’ suit at the court below seeking virtually the same reliefs against the same parties in the appellants’ petition at the National/State Houses of Assembly Election Petition Tribunal, holden at Asaba which was running and on going, does not tantamount to an abuse of the process of court, I am afraid, nothing else may qualify to be so labeled.

His Lordship, Tobi, JSC, in Egwusim & Anor. V. Ojichie & Anor. (2004) 10 NWLR (pt. 882) 613 at 624, put such conduct by litigants such as the appellants herein, on the spot, when he opined that:
“A litigant has no right to pursue pari pasu two processes which will have the same effect in two courts at the same time, with a view to obtaining victory in one of the processes or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps”.
I am completely bound by this admonition. It is only hoped that it is not learned counsel who are officers in the temple of justice who really play the role of Smart Alecs, in such situations by encouraging litigants to commit abuses of the process of court. And the sad thing, is that those who are on such tracks, are like a man who pursues two rats at the same time and ends up, catching none!
Further see the more recent decision of the Supreme Court in ACB Plc. V. Nwaigwe & 2 Ors. (2011) 1 – 2 S.C (pt. II) 67 at 81 -82 where a case of abuse of the process of court was depreciated, inter alia:
“It is the argument of learned senior counsel for the Appellant that the parties to the two actions and the issues calling for determination therein are different which cannot be correct in substance. The judgment Appellant sought to set aside by appeal or to quash by certiorari is between the same parties and to me it does not matter whether the grounds for seeking to quash the judgment are fewer than the grounds of appeal seeking to set aside the said judgment. The effect is clearly the same, that is, nullifying the said judgment. It is clear that Appellant maintained parallel actions or proceedings aimed at achieving the same end of nullifying the judgment in question simultaneously thus committing a clear case of abuse of court process.”

I am satisfied and of the firm opinion that the filing of the appellants’ suit at the court below, during the pendency of their election petition at the National and State Houses of Assembly Election Petition Tribunal sitting at Asaba with respect to the 26th April, 2011 election of member representing the Bomadi Constituency in the Delta State House of Assembly, was tantamount to an abuse of the process of court.
I, therefore resolve issue 1 against the appellants.

Issue 2.
It is the submission of learned appellants’ counsel that by virtue of Sections 128 and 129 of the 1999 Constitution, the Delta State House of Assembly has the power to conduct administrative investigations and enquiries and that Exhibits “F”, “G” and “H” attached to the affidavit in support of the originating summons are products of such investigations. He emphasized the fact that because it was the said House of Assembly which empanelled the committee which conducted an investigation does not reduce the administrative nature of the proceedings. He relied on the definition of Administrative proceedings in Black’s Law Dictionary 9th Edition to mean:

“A hearing, inquiry, investigation or trial before an administrative agency, usually adjudicatory in nature but sometimes quasi-legislature -also termed evidentiary hearing, full hearing; trial- type hearing; agency adjudication.”

Learned counsel urged that the exercise conducted by the joint committees of the Delta State House of Assembly into the conduct of the 1st respondent amounted to an administrative inquiry as envisaged by the question posed in paragraph 6(a) contained in Form C.F. 001 attached to the appellants’ originating summons at the court below as Exhibit “E” at pages 23 -28 of the record of appeal.

On his part, learned 1st respondent’s counsel submitted that the investigative proceedings conducted by the joint committees of the Delta State House of Assembly did not amount to a judicial commission of enquiry or administrative panel of enquiry. He referred to question 6(a) of Exhibit E attached to the appellants’ affidavit supporting the originating summons which had to do with whether or not the 1st respondent was ever indicted for embezzlement or fraud by a judicial commission of inquiry or an administrative panel of enquiry. He submitted that the meaning ascribed to words should be given effect in its ordinary interpretation even where such interpretation causes inconveniences to the parties or even if it gives an unreasonable or unfair result. He relied on Fasakin Foods (Nig) Ltd. V. Shosanya (2006) 4 SC (pt. II) 204 at 209 -210; A.G. Abia State V. A.G Federation (2005) 6 SC (pt. 1) 63 at 503.

With respect to the powers of the Delta State House of Assembly to set up committees to investigate and expose corruption under Sections 128 and 129 of the 1999 Constitution, it is the contention of 1st respondent’s counsel that in as much as that is the law, the said Sections did not empower the said committees to indict any person. He submitted that what is not included in a statute or the constitution should not be read into it. He again referred to A.G Abia State V. A.G. Federation (supra) at 98 of the report.

Resolution of issue 2
The question posed at paragraph 6(a) in Form C.F. 001 which is contained in Exhibit “E” attached to the appellants’ affidavit in support of the originating summons at pages 23 -28 of the record of appeal, reads, to wit:

“6(a) Have you ever been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry? If yes, give details.”

A Judicial Commission of Inquiry is normally constituted by virtue of and under a Judicial Commission of Inquiry Law or Act as the case may be, to inquire into certain affairs and/or conduct of some individuals and after the inquiry, which is investigative in nature, the said commission turns in its report to the government which set it up to study the recommendations and take further necessary actions, as it deems fit.

An administrative panel of inquiry is also constituted usually by Government or a department of Government to inquire into certain complaints, particularly within the civil service and in accordance with the relevant civil service rules.

The words indict and indictment, each portend an imputation of crime and criminality against a person. They have been defined thus:
“Indict (in-dit), vb. To charge (a person) with a crime by formal legal process, esp. by grand-jury presentation -also formally spelled endite; indite.
“Indictment (in dit-ment) the formal written accusation of a crime. Made by a grand jury and presented to a court for prosecution against the accused person. See Fed. R. Crim. P. 7. (Cases: Indictment and Information 17. C.J.S Indictments and Information 28. 2. The act or process of preparing or bringing forward such a formal written accusation. Cf. INFORMATION; PRESENTMENT (2).
See Black’s Law Dictionary, 8th Edition at page 788.

The Supreme Court, in Amaechi V. Independent National Electoral Commission (2008) 10 WRN 164; (2008) 1 SC (pt. 1) 136; (2008) 1 SCNJ 1; (2008) 1 MJSC; (2008) 5 NWLR (pt. 1080) 227 at page 437 stated succinctly that:
“The fundamental duty of the court is to expound the law and not to expand it. It must decide what the law is and not what it should be. Where the words used in couching the provisions are clear and unambiguous, they must be given their ordinary and grammatical meanings, no more. And although the judex must always have a resort to the intention of the legislators, that intention can only be found in the words used to frame the provisions and nowhere else.”
Therefore, since an investigative committee of a House of Assembly is not mentioned at paragraph 6(a) of Form C.F.001 aforementioned, the same cannot be an administrative panel of inquiry.
I, therefore resolve issue 2 against the appellants.
I abide by the consequential order contained therein.

I shall take issues 3 and 4 together.
Arguing issue 3, appellants’ learned counsel submitted that Section 107(1)(h) of the 1999 Constitution has nothing to do with indictment but deals with the effect of a person presenting a forged certificate to the 3rd respondent. He contended that by presenting Form C.F. 001 – Exhibit “E” to the 3rd respondent for the purpose of the election in question, the 1st respondent lied in violation of Section 107(1)(h) of the 1999 Constitution (as amended). He referred to Dide V. Seleketimibi (2010) All FWLR (pt. 509) 583 at 610, to the effect that a false declaration of age under oath amounts to a forged certificate within the meaning of Section 107(1)(i) of the 1999 Constitution which is in pari mataria with the extant provision of Section 107(1)(h) of the 1999 Constitution as amended.
With respect to issue 4, learned appellants’ counsel submitted that an infraction of the provisions of Sections 106 and 107 of the 1999 Constitution not only disqualifies a candidate for an election but also renders any purported election of such candidate, despite the constitutional breach or infringement, null and void and of no effect whatsoever. He referred to Knight Frank & Rutley (Nig) V Attor. Gen. Kano State (1998) 7 NWLR (pt. 556) 19, where Uwais JSC (as he then was) stated thus:

“It is elementary that where a party acted contrary to, infringes or violates any of the provisions of the Constitution, such action is null and void and of no effect whatsoever.”

Learned counsel also referred to Kwara V. Lagi Innocent (2010) 7 EPR 523 at 550; Adeleke V. Oyo State House of Assembly (2007) All FWLR (pt. 345) 211. He urged that the violation of Section 107(1)(h) of the 1999 Constitution, invalidated the election and subsequent inauguration of the 1st respondent as a member of the Delta State House of Assembly.

Responding to issue 3, learned counsel to the 1st respondent submitted that the 1st respondent did not lie when he stated in Exhibit E attached to the affidavit in support of the originating summons, that he had never been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry and that the joint committee of the Delta State House of Assembly is not the same as an Adminstrative Panel of Inquiry.  He referred to Umana V. Attah (2003) 2 LRECN 350 at 388.
It is the further contention of 1st respondent’s learned counsel that even if the 1st respondent was indicted by the joint committees of the Delta State House of Assembly, that was not enough to disqualify him to contest the election in question and that it is upon the conviction of a person by a court of law that he is disqualified for contesting an election.  He relied on Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 at 307; E. Effion V. C.R.S.I.E.C. (2010) 14 NWLR (pt. 1213 106 a 132, to the effect that a person is deemed to have been indicted only upon his trial and conviction for an offence by a competent court with jurisdiction to do so.
Referring to Section 138(1)(a) of the Electoral Act, 2010 (as amended), vis-a-vis Section 107(1)(h) and (i) of the 1999 Constitution (as amended); learned 1st respondent’s counsel submitted that the non-qualification of candidate for an election is a ground for questioning an election after the conduct of the election, which  jurisdiction is vested in the election tribunal and not in the court below.  He referred to Abubakar V. Yar’Adua (2008) 19 NWLR (pt. 1120) 1 at 82 – 83; Ojukwu V. Yar’Adua (2009) 12 NWLR (pt. 1154) 50 at 110; Alaribe V. Nwankpa (1999) 4 NWLR (pt. 600) 551 at 569; Ozurumba V. Nwankpa (1999) 4 NWLR (pt. 598) 282 at 292 – 293.
Learned 1st respondent’s counsel, with reference to the authority of Didi V. Seleketimibi (supra) relied upon by the appellants, submitted that the question of forgery of age declaration certificate by the 1st respondent therein was with respect to the fact that the receipt number which he claimed to have paid for the age declaration was a receipt under which somebody else had used in paying for some processes filed in the Bomadi High Court of Justice, Delta State.  Furthermore, that in the same case, the issue of presenting a forged certificate to INEC liable to a disqualification under Section 107(1)(i) of the 1999 Constitution (as amended) was made a ground in the election petition filed by the appellants therein, after the election.  The said petition was dismissed and on appeal to the Court of Appeal, the latter upheld the contention of the appellant that the 1st respondent therein, presented a forged certificate to INEC.
1st respondent’s learned counsel further submitted that in the instant case, the appellants’ petition which included the ground of the disqualification of the 1st respondent to contest the election in question was dismissed by the National and State Houses of Assembly Election Tribunal and on appeal to this court, the same was dismissed.

Regarding issue 4, learned 1st respondent’s counsel contended that the suit of the appellants having been filed after the conduct of the election in question was in contravention of Sections 31(5) & (6) and 138(i)(a) of the Electoral Act, 2010, as amended, Sections 285(i)(b) and 107(1)(h)(1) of the 1999 Constitution as amended. He referred to Udeagha V. Omegara (supra) at 204 – 205; Ohakim V. Agbaso (supra) at 238; Hassan V. Aliyu (supra) at 598; Salim V. CPC (2013) 6 NWLR (pt. 1351) 501 at 524 – 525.
He urged that the court below and other regular courts have no jurisdiction to determine the issue of qualification predicated under Section 107(1)(h) and (i) of the 1999 Constitution, as amended; which is a ground for questioning the return of the 1st respondent at an election tribunal which had the jurisdictional competence to hear and determine it. And this was done by the appellants at the election tribunal which dismissed the petition and on a further appeal to this court, the appeal against the tribunal’s decision with respect to the qualification of the 1st respondent to contest the said election, was also dismissed by this court.

Resolution of issues 3 & 4
Section 107(1)(h)(i) of the 1999 Constitution of the Federal Republic of Nigeria, as amended provides, inter alia:

“107(1) No person shall be qualified for election to a House of Assembly if-
(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal and State Government which indictment has been accepted by the Federal or State Government, respectively; or
(i) he has presented a forged certificate to the Independent National Electoral Commission.”

Now, the crucial question to be asked is that, did the 1st respondent present a forged certificate as per Exhibit “E” attached to the appellants’ affidavit in support of the originating summons to the 3rd respondent? The said Exhibit “E” is the Form C.F. 001. For the sake of clarity, it is reproduced thus:

“6.(a)Have you ever been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or An Administrative Panel of Inquiry? If yes, give details…………………No………
6.(b) Was the indictment accepted by the Federal or State Government as the case may be? (provide evidence of outcome).
…………………..No………………….”

I remember that in my consideration and determination of issue 2, I came to the conclusion that the Joint Committees of the Delta State House of Assembly is not the same as an Administrative Panel of Inquiry. A fortiori, the said Joint Committee of the House of Assembly possessed no vires/power to indict any person. In other words, the said Joint Committee of the Delta State House of Assembly did not indict the 1st respondent. Therefore, by simple parity of reasoning founded on logic, the 1st respondent did not lie when he answered the question at paragraph 6(a) of the Form C.F. 001 in the negative. That is, he had never been indicted of embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry. It follows therefore, that the 1st respondent did not contravene or run foul of Section 107(1)(h)(i) of the 1999 Constitution, as amended.
Let me say a word with respect to the authority of this court in Didi V. Seleketimibi (supra) heavily relied upon by appellants’ learned counsel. In that case, the appellant had filed an election petition at the National and State Houses of Assembly Election Tribunal challenging the return of the 1st respondent as the winner of the election conducted in 2007. One of the grounds upon which the petition was hinged was the non-qualification of the 1st respondent, for having forged his birth certification. And this was because it was discovered that the receipt number which the 1st respondent claimed he obtained and attached to his declaration of age certification, was actually the receipt number of a court process which had been filed by somebody else at the Bomadi High Court, in Delta State. The Election Tribunal, dismissed the petition.
On appeal to this court, my Lord, Eko, JCA., held inter alia:

“In Nigeria, forgery consist of making of a false document or writing knowing it to be false and with intent that it may be used as a genuine document: Smart Vs. State (1974) 11 SC 173 at 186, (1974) All NLR 868. I have no doubt whatsoever that exhibit B proves beyond reasonable doubt that exhibit A presented to INEC by the 1st respondent, himself a lawyer, is a forged certificate, at least as respects his age declaration and the place of birth. The 1st respondent offered no evidence to rebut or clarify the issues raised by appellants at the tribunal as regards exhibits A and B, the issue is not that the 1st respondent had/had not the minimum educational qualification but whether exhibit A or the age certificate was false or a forged document. I resolve this issue in favour of the appellants and against the 1st respondent. The tribunal erred when it held that forgery as envisaged by section 107(1) (i) of the Constitution does not extend to forgery of age declaration or other documents, but forgery of school certificate and its equivalent.”

The decision of his Lordship (supra) in the circumstances of the facts in that case, certainly could not have been otherwise.
I am clearly of the firm opinion that the facts in Seleketimibi (supra) are not on all fours at all, with the facts in the instant case; which I had demonstrated earlier in the judgment.
I have considered the submissions of both learned counsel herein, especially with respect to the issue of the qualification of the 1st respondent to have participated and won the election conducted by the 3rd respondent on 26th April, 2011 for the member representing the Bomadi Constituency in the Delta State House of Assembly. I had expected the learned appellants’ counsel to react to the submissions of 1st respondent’s learned counsel from paragraphs 7.5 to 8.4 of his brief of argument touching on the issue of the qualification of the 1st respondent to contest the aforesaid election. And is it true as submitted by the 1st respondent’s counsel at the penultimate part of paragraph 7.9 of his brief of argument at page 29 thereof, that the question of the 1st respondent’s qualification was a ground upon which the appellants’ petition was anchored at the National and State Houses of Assembly Election Petition Tribunal and the same petition was dismissed? Is it also true that on further appeal to this court against the dismissal of the appellants’ petition, their appeal was equally dismissed by this court? The appellants did not respond to those weighty submissions of the 1st respondent’s counsel.
It is settled that where an opponent, like the appellants herein, fails or neglects to counter arguments of his adversary in his brief of argument, the defaulting party is deemed to have conceded the non-contested points. Nwankwo V. Yar’Adua (2010) 3 SCNJ (pt. 1) 244; (2010) 12 NWLR (pt. 1209) 518; (2010) 45 WRN 1; Okongwu V. NNPC (1989) 7 SC (pt. 1) 127; (1989) 7 SCNJ 106; (1989) 4 NWLR (pt. 115) 296; (1989) 3 NSCC 118.
For all I have been saying, it is obvious, that issues 3 and 4 be and they are each resolved against the appellants.

Having therefore resolved all the issues against the appellants, the appeal is found to be unmeritorious. I, dismiss it accordingly.
In the circumstances, I do not think it is expedient for me to still consider and determine the 1st respondent’s Notice that the judgment of the court below be affirmed on grounds other than those relied upon by the learned trial judge. The same is discountenanced, by me.
In effect, the judgment of Buba, J., in suit No. FHC/ASB/CS/184/2011, delivered on 27th June, 2012 is hereby affirmed, in its entirety.
Each side shall bear own costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading hitherto the judgment of my learned brother, TOM SHAIBU YAKUBU, JCA. I agree totally with the reasoning and conclusion of learned brother that this appeal is without merit and should be dismissed. I will add that I have always been an advocate of substantial rather than technical justice. The wrong heading of the Notice of Appeal in my view does not constitute fundamental defect which cannot be repaired. After all, the Respondent is aware that an appeal has been lodged I cannot agree that the wrong heading of the notice makes it invalid.
I am of the view that the notice of appeal and the appeal itself should not be rendered incompetent by this obvious error on the face of the process. That head of objection is hereby overruled.
The inelegant drafting of the issues for determination also resulted in the appellant distilling more issues than the grounds of appeal. An issue may be derived from several grounds of appeal whereas two issues cannot be formulated from a single ground of appeal. The multiplicity of issues as distilled by learned appellant’s counsel in this case did not tie with the grounds of appeal, since the issues must not exceed the grounds of appeal. It is not permissible to distill issues from a set of grounds of appeal and another issue from the same set of grounds of appeal. It breeds confusion. See Teriba v. Adeyemo (2010) 4 SCNJ 59 at 67. I also hold that issues two, three and four are incompetent and as they are conjoined with grounds three, four, five, six and seven of the said grounds are incompetent and are all hereby struck out.

In accordance with the admonition from the Supreme Court, being the penultimate court, we are obliged to consider all the issues submitted for determination so that the apex court may have the benefit of our opinion on them.
The first issue actually turns on whether it was the 3rd – 5th Respondents who should have pleaded and raised the defence that the action was statute barred. I have to agree that since it is an issue of jurisdiction, any party in the suit can raise it. It can also be raised by the court suo motu. A careful reading of Hassan v. Aliyu (2010) 17 NWLR Pt. 1223 Pg. 547 relied on by appellant’s counsel shows that the issue of the matter being statute barred against INEC as a party – INEC being a “public office” as so defined by the Public Officers Protection Act and Iguh JSC in Ibrahim v. JSC (1991) 14 NWLR Pt. 584 Pg.1 at Pg.31 was raised therein by Aliyu and not INEC. From the pleadings in this case, the cause of action arose on the 26/4/2011 when INEC as 3rd Respondent returned the 1st Respondent as winner of the election. The suit was filed at the Federal High Court as a pre-election matter on 4/8/2011, a period obviously more than three months. In my humble view, S.87(9) of the Electoral Act 2010 (as amended) cannot be interpreted to the effect that time does not run against an action predicated on a pre-election matter. For the above and fuller reasons ably adumbrated by my learned brother in the lead judgment, I also dismiss the appeal.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the Judgment just delivered by my learned brother, the Hon. Justice T.S. Yakubu, JCA, I have no hesitation in concurring with the reasoning and conclusion reached therein, to the effect that the instant appeal is unmeritorious. I adopt the said reasoning and conclusion as mine, and accordingly dismiss the appeal. The judgment of the court below, delivered on 27/6/12 in Suit No. FHC/ASB/CS/184/2011, is equally affirmed by me.
I abide by the consequential order contained therein.

Appearances

A.M. Oriakhi, Esq., (with U.A.E. Akporherhe, Esq.,)For Appellant

AND

Felix Okorotie, Esq.,For Respondent