PDP v. UMAR
(2020)LCN/15423(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, November 11, 2020
CA/G/150/2019
RATIO
INTERPRETATION OF STATUTE: PRACTICE OF THE COURT WHERE THE WORDS OF A STATUTE ARE CLEAR AND UNAMBIGUOUS
Where the words of a Statute are clear and unambiguous, they should be given their plain, ordinary grammatical meaning. See Lawal vs GB Ollivant (1972) 2 Sc pg 124, Aya vs Henshaw (1972) 5 SC pg 87 Ibrahim vs Nig Army (2015) LPELR 24598.
“Where the words of a Statute are plain and unambiguous, same would not require an interpretation but should be given its natural and ordinary meaning per Ogunbiyi JSC in Emenike vs Orji ( 2008) LPELR 4105. Elabanjo vs Dawodu (2006) LPELR 1106.
The Courts have even warned in these words that
“it must be stressed here and it is even trite that in the process of interpretation of statement, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intension of the law makers. See Ayodele vs State (2011) 6 NWLR (Pt. 1245) pg 309, A.G.F. vs AG. Lagos State (2015) 16 NWLR (Pt. 1380) pg 249, Ojokolobo vs Alamu (1987) 3 NWLR (Pt. 61) pg 377 Gana vs SDP (2019) LPELR 47153. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
PEOPLES DEMOCRATIC PARTY (PDP) APPELANT(S)
And
ZUBAIRU MUHAMMAD UMAR RESPONDENT(S)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Gombe State delivered by Hon Justice A. M. Yakubu on 23rd November, 2018.
The Appellant herein was the Respondent at the Lower Court whilst the Respondent was the plaintiff. The Plaintiff by an Originating Summons filed on 26th September, 2018 asked the Court for the following reliefs.
1. A declaration that failure, neglect or refusal by the Defendant’s Gombe State National Assembly Aspirants Screening Committee (“Screening Committee”) to confront the plaintiff with any claim made against him that was prejudicial to him by arriving at its decision not to clear him to contest the Senatorial primary election was a denial of fair hearing.
2. A declaration that the Defendant cannot legally rightfully conduct Gombe North Senatorial primary election to the exclusion of the plaintiff or convene a special congress to confirm any aspirant as its candidate for the Gombe North Senatorial election, without first resolving the issue of the denial of the plaintiff‘s right to fair hearing by the Defendant’s screening committee, which (screening) is a condition precedent to holding such primary election or special congress.
3. A mandatory order directing the Defendant to afford the plaintiff the opportunity to respond to the two claims/allegation/assertion/contention/disputation that led to the non-clearance of the plaintiff to contest the Gombe North primary election
4. A declaration that any Gombe North primary election or special congress conducted or convened by the Defendant without first resolving the issue of the denial of the plaintiff’s right to fair hearing by the defendant’s Screening Committee is illegal, null and void ab initio.
5. A declaration that any Gombe North primary election or special congress conducted or convened by the Defendant without the determination of the plaintiff’s appeal against the decision of the screening committee by the Gombe State Screening Appeal Panel is illegal, null and void ab initio.
6. A declaration that the Defendant’s Screening Committee has no power to introduce additional requirement for qualification (financing of party) to the guidelines set by the Defendant and use it as a basis for non-clearance of an aspirant.
7. A declaration that the plaintiff having fulfilled all the conditions for qualification to contest the Gombe North Senatorial primary election should be allowed to contest the primary election.
8. An order of Court directing the Defendant to allow and facilitate the participation of the plaintiff to contest Gombe North Senatorial primary election as an aspirant.
The Appellant filed its counter affidavit and its defendant’s written address. After all processes were filed, the learned Judge delivered its judgment in favour of the plaintiff/Respondent in this appeal. The Appellant was naturally dissatisfied and thereafter, filed its notice and three (3) grounds of Appeal.
The Appellant filed its Appellant’s brief on 18th July, 2019 but deemed properly filed and served on 25th June, 2020. The Appellant’s reply brief was filed on 9th July, 2020. The Appellant articulated only one issue for determination as follows:
Whether the Learned Trial Judge was justified in granting the reliefs not sought by the Respondent and or covered by his Originating Summons.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In Response, the Respondent filed his Respondent’s brief on 3rd July, 2020 and articulated one issue also for determination by the Court.
Whether or not the trial High Court was right in making the consequential order that the Appellant should refund to the Respondent the sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) only? (Distilled from Ground 1, 2 and 3)
Both parties articulated a lone issue each and their issues are materially the same in content.
To my mind, the only issue left unresolved between the parties is whether the Respondent in this appeal was entitled to the refunds of Three million, Five Hundred Thousand Naira (N3.5m) paid to the Appellant for nomination.
The Appellant’s counsel submitted that the trial Court refused to grant all the eight (8) Reliefs sought by the Respondent as plaintiff in his Originating Summons. Counsel continued that the learned trial Judge after refusing the eight (8) Reliefs sought went on to grant the Respondent Five hundred Thousand Naira (N500,000.00) being the fees paid for his expression of interest form. Also Three million (N3m) non refundable fee paid to the Appellant for his nomination form. In total a sum of Three Million, Five Hundred Thousand Naira (N3.5m) was to be refunded to the Respondent for the breach of fair hearing by the Appellant.
Counsel argued that it would be unconscionable to pay the Respondent Three Million, Five Hundred Thousand Naira (N3.5 Million) non refundable fees when that was not part of the reliefs sought from the Court. Counsel re-iterated that a Court will not grant a relief which was not sought by a party. See Okubule Vs Oyagbola (1990) 4 NWLR (Pt. 147) pg 723, SPD CN Ltd Vs Amadi (2010) 13 NWLR (Pt. 1210) pg 82 at 100-103.
Counsel argued that the Courts have been enjoined to restrict themselves to cases set out by the parties in the pleadings. It is not the duty of the Court to make a case for the parties, U.B.N PLC vs Emole (2001) 92 LRCN pg 3198 and 3208, Aermacchi vs AIC. Ltd (1986) NWLR pt 443 pg 449.
From the Respondent’s pleadings, there was no relief for the refund of the non-refundable monies he paid. The Respondent only requested for his disqualification to be set aside. The learned trial Judge having refused to grant any of the reliefs sought by the respondent should have stopped at that stage.
Counsel submitted further that the order for the refund of the non-refundable fee was perverse as it was not a relief flowing from the reliefs sought by the Respondent. See Ishola vs Folorunso (2010) 13 NWLR pt 1210 pg 169. Counsel argued that the said order of the learned trial Judge did not form part of the reliefs sought by the Respondent in his Originating Summons. See Eze vs Governor Abia State (2014) 14 NWLR (Pt. 1426) pg 192.
Counsel submitted further that the Respondent being a member of the Appellant knew that those monies were non-refundable. Counsel referred the Court to Section 15 (1) (b) and (c) (1) of the Appellant’s Electoral Guidelines for primary election which Provides as following
“Section 15 (1)(b) an aspirant shall obtain the Expression of interest form code PD002/NA upon payment of the prescribed nonrefundable fee of Five Hundred Thousand Naira (N500,000.00) from the National Secretariat of the party of such other place as may be designated by the National Executive on the recommendation of the National Working Committee of the party and upon completion return same to the National Secretariat (c) the nomination forms for the primary election to the National Assembly shall be obtained from the National Secretariat of the party upon payment of a non-refundable fee of: i. Three Million Naira (N3,000,000.00) for a Senatorial aspirant;…”
The monies payable by any aspirant is a pre-requisite and non-refundable as per the provision of the Appellant’s guidelines. The words Counsel argued are clear and unambiguous and need not be given any other interpretation other than the literal meaning. Counsel stated that where words in a Statute are clear and unambiguous, they need no other interpretation. Dankwambo vs Abubakar (2016) 2 NWLR (Pt .1495) pg 157, Falere Vs INEC (2016) 18 NWLR (Pt .1543) pg 61.
The order of the trial Court for a refund of the non-refundable fees was based on sentiment and not law. Mbachu vs A.I.R.B.D.A. (2006) 14 NWLR (Pt.1000) pg 691 where the Supreme Court held.
“Sentiment has no place in Courts. In the instant case, the Court of Appeal out of sentiments purported to have made award of N50,000, which if made was not justified.”
Counsel argued that the Court refused to grant any of the reliefs sought and still went ahead to order for the refund of the non-refundable fees. Counsel urged the Court to interfere with this finding and hold that this finding is perverse and should be reversed. See OSIEC VS A.C. (2010) 19 NWLR (Pt. 1226) pg 275.
Finally, counsel urged the Court to allow this appeal and set aside the judgment of the Court as regards to the refund of the non-refundable monies paid as such is against the set guidelines of the Appellant.
The Respondent’s Counsel in response submitted that it is true that the position of the law is that a Court should not give to a party what it did not ask for. See Amaechi Vs INEC (2008) Vol 58 LRCN pg 1.
However, counsel argued that there are exceptions to this rule by making consequential orders flowing from the reliefs sought. Counsel argued that the Apex Court tied the making of such consequential orders to equitable principles thus
“I repeat that the primary duty of the Court is to do justice to all manner of men who are in all matters before it”.
Counsel continued that the Court found as a fact that the Respondent’s right of fair hearing was breached by the NASS Screening Committee of the Appellant. The Court refused to nullify the exercise because it was of the view that the time for the primaries had elapsed. Therefore, the Court reverted to the equitable principles and made the consequential orders that the Appellant should refund the Respondent Three million, Five Hundred Thousand Naira (N3.5 Million). See Diamond Bank Ltd vs Partnership Investment Co Ltd (2009) LPELR 939. Counsel argued that such equitable reliefs may be granted to a party as he may be entitled to. See Ndem vs A.G Bendel State (1976) 6 U.I.L.R (pt II) pg 266 Ishola vs Folorunso (Supra) Eze vs Governor Abia State (Supra).
Counsel argued further that Equity will not suffer a wrong to be without remedy. Counsel also referred the Court to Section 6 (6) of the 1999 Constitution that gives the Court inherent powers
Counsel therefore, urged the Court to dismiss this appeal and affirm the judgment of the lower Court.
RESOLUTION
This appeal is only based on the propriety or impropriety of the award of or order by the trial judge that the Appellant should refund the Three million, Five Hundred Thousand Naira (N3.5M) non-refundable fees paid by the Respondent in his quest for nomination as a senator.
Both parties agreed that the Respondent in its reliefs sought in his Originating Summons did not request for an order of refund of any monies.
The reliefs sought are as recapped earlier in this judgment.
Section 15 (1)(b) specifically provided that
“an aspirant shall obtain the Expression of interest form code PD002/NA upon payment of the prescribed non-refundable fee of Five Hundred Thousand Naira (N500,000.00).”
(c) That the nomination forms for the primary election to the NASS shall be obtained from the National Secretariat of the party upon payment of a non-refundable fee of Three Million Naira (N3m) for a Senatorial aspirant.”
It is obvious that these two sums are non-refundable no matter the circumstances.
It is true that the lower Court found as a fact that the fundamental rights of fair hearing of the Respondent were breached.
The Respondent’s counsel argued that the lower Court took umbrage under Equity to grant the Respondent orders for the refund of the Three Million, Five Hundred Thousand Naira (N3.5m) already paid to the party, the Appellant.
The learned counsel for the Appellant argued that the words in the guidelines are clear and unambiguous. The key words are “non-refundable”.
REFUND means give back, pay back, rebate, reimburse, repay, restore, return.
However, the provision of the guideline specifically stated that the amount paid is non-refundable i.e it cannot be paid back or reimbursed. These words were specific. Where the words of a Statute are clear and unambiguous, they should be given their plain, ordinary grammatical meaning. See Lawal vs GB Ollivant (1972) 2 Sc pg 124, Aya vs Henshaw (1972) 5 SC pg 87 Ibrahim vs Nig Army (2015) LPELR 24598.
“Where the words of a Statute are plain and unambiguous, same would not require an interpretation but should be given its natural and ordinary meaning per Ogunbiyi JSC in Emenike vs Orji ( 2008) LPELR 4105. Elabanjo vs Dawodu (2006) LPELR 1106.
The Courts have even warned in these words that
“it must be stressed here and it is even trite that in the process of interpretation of statement, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intension of the law makers. See Ayodele vs State (2011) 6 NWLR (Pt. 1245) pg 309, A.G.F. vs AG. Lagos State (2015) 16 NWLR (Pt. 1380) pg 249, Ojokolobo vs Alamu (1987) 3 NWLR (Pt. 61) pg 377 Gana vs SDP (2019) LPELR 47153.
Having held that the meaning of the words non-refundable should be given its ordinary meaning, that is, it cannot be refunded no matter what has happened, it therefore, means that the order of the trial Court for the Appellant to refund the Three Million, Five Hundred Thousand Naira (N3.5m) naira paid by the Respondent to him is perverse. The Respondent never requested for this relief. I don’t even see the order as flowing as consequential orders flowing from the other reliefs. See Awoniyi vs Registered Trustees of the Rosicrucian Order (2000) LPELR 655. Iguh JSC held that
“the purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject matter of a former executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party, an entitlement to relief he has not established in his favour. See Akinbobola vs Plisson Fisko Nig. Ltd (1991) 1 NWLR pt 167 pg 270 Obayagbona vs Obazee (1972) 5 SC pg 247 , Liman vs Mohammed (1999) 9 NWLR pt 617 pg 116, Gbadamosi vs Alete (1993) 2 NWLR pt 275 pg 113.”
Karibi – Whyte JSC also held in the case of Awoniyi vs T.R.T of the Rosicrucian Order (supra).
“there is judicial authority for the proposition that where a Court refuses the principal order sought, an incidental order cannot be made”
See Hemason (Nig) Ltd vs Pedrotech Nig Ltd (1993) 3 NWLR pt 283 pg 548. This is because the principal order on which the consequential order should stand, having been refused, there is no base for making of the consequential order”.
In Nyako vs Adamawa State House of Assembly (2016) LPELR 41822, Muhammed JSC referred to the case of Awoniyi vs Registered Trustees of Amorc (2000) 10 NWLR pt 676 pg 522 held
“This Court re-stated the purpose of a consequential order. “The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be subject matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour”
With the foregoing, it is obvious that the Respondent neither sought the refund of the “non-refundable” deposit nor canvassed it in the trial Court. The Court as it were cannot grant a relief not sought for nor canvassed by the parties before it.
The Court was therefore wrong to have ordered a refund of the “non-refundable” monies paid by the Respondent as a pre-requisite for his candidature in the primaries. This order is therefore, perverse and amenable to be reversed by this Court. The order of refund did not flow from the reliefs sought by the Respondent.
This appeal is therefore, meritorious. It is allowed. The order of the trial Court granting the Respondent Three Million Five Hundred Thousand Naira (N3.5m) as refund is hereby set aside.
No order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading in draft the Judgement just delivered by my learned brother, Ndukwe-Anyanwu, JCA.
My lord has carefully navigated through the facts of the Appeal and the applicable law which relates to a trial Court making an award to a party where it was not sought for and where such Order is not ancillary to the principal reliefs sought.
Based on the review of the facts on Record and the decided authorities on the subject, I find that I have to agree that there was no basis for the award, the principal reliefs having not been granted and the refund of monies paid not forming part of the reliefs claimed by the Respondent – Awoniyi V Regd, Trustees of the Rosicrucian Order (2000) LPELR-655(SC) per Karibi-Whyte, JSC; Nyako V Adamawa State House of Assembly (2016) LPELR-41822(SC) per Muhammad, JSC.
Therefore, for this reason and the more comprehensive reasons in the lead Judgement, I agree that the Appeal succeeds. It is therefore allowed. I endorse the consequential orders made therein.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment delivered by my learned brother, Uzoamaka I. Ndukwe-Anyanwu, JCA before it was delivered. The reasoning and conclusion reached therein is faultless. I adopt it.
However, the absurdity in the award made by the trial Court compels me to key in words of my own and not merely to adopt the conclusion in the lead Judgment.
It is trite that the Court is without power to grant to a party a relief not asked for, not so even when there is a prompting to do so in equity. Once the principal relief fails the Court must stop there. Any award made which is not asked for is perverse. A Court of law cannot act as a Father Christmas. It is worse so, that the award was made without inviting the parties, particularly the Appellant to be heard on it.
This appeal is therefore profoundly meritorious, and is hereby allowed. In consequence, the Judgment of the trial Court is hereby set aside.
Appearances:
HABU ABDU, with him, E. S. TIZHE, ESQ. For Appellant(s)
DENNIS EZE, with him, IBRAHIM M. ATTAHIR, ESQ. For Respondent(s)
