PRINCE CLETUS KPEKON & ANOR v. MAURICE PRONEN & ORS
(2016)LCN/8101(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of October, 2011
CA/PH/EPT/15/2011
RATIO
APPEAL: ISSUES FOR DETERMINATION; THE EFFECT OF AN ISSUE FORMULATED IN THE BRIEF OF ARGUMENT IS NOT SUPPORTED BY OR RELATED TO ANY OF THE GROUNDS OF THE GROUNDS OF APPEAL FILED
When in a appeal, an issue formulated in the brief of argument is not supported by or related to any of the grounds of the grounds of appeal filed, such an issue is not determination by the court and should be discountenanced and struck out by the court.” See Ibrahim v. INEC & ORS [1999] 8 NWLR [Pt.614] 334; Ishie v. Mowanso (2000) 13 NWLR (Pt.684) 279; Modupe v. The State (1988) 4 NWLR (pt.87) 130. In Abioye v. Afolabi (1998) 4 NWLR (pt.545) 296, it was held that an issue for determination which is not related to any of the grounds of appeal filed is incompetent and will be discountenanced or disregarded. per. PAUL ADAMU GALINJE, J.C.A
PRACTICE AND PROCEDURE: WHETHER WHERE LEGISLATION LAYS DOWN A PROCEDURE FOR DOING A THING THERE SHOULD BE OTHER METHOD OF DOING IT
In Okereke v. Yar’Adua [2008] 12 NWLR [Pt 1100] 95 at 127 paragraph E-F, the supreme court, per Onnoghen JSC said:- “It is settled law that where legislation lays down a procedure for doing a thing there should be no other method of doing it”See CCB Plc v. A.G. Anambra state [1992]10 SCJ 137 at 163; Buhari v. Yusuf [2003] 14 NWLR [Pt.84 1] 446 at 498. per. PAUL ADAMU GALINJE, J.C.A
JUSTICE
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. PRINCE CLETUS KPEKON
2. ACTION CONGRESS OF NIGERIAN (CAN) Appellant(s)
AND
1. MAURICE PRONEN
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INEC Respondent(s)
PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): On the 29/09/201, I dismissed this appeal and reserved reasons for my decision. I now give reasons for my decision in this appeal.
The 1st Appellant herein was a contestant in the election into the House of Representative for Khana/Gokana Federal constituency seat held on the 9th April 2011 under the platform of the 2nd Appellant, a political party registered in Nigeria. The 1st Respondent also contested the said election under the platform of the 2nd Respondent, also a political party registered in Nigeria.
The 3rd Respondent is the body responsible for conducting National Elections in Nigeria and it conducted the election which gave rise to this appeal.
At the end of the elections aforesaid, the 1st Respondent was declared winner and was accordingly returned as the elected member representing Khana/Gokana Federal Constituency.
The Appellants are dissatisfied with the declaration and return and therefore filed a petition at the National and state House of Assembly Election Tribunal on the 1st May, 2011, challenging the result of the election. The 1st and 2nd Respondents filed their reply within 21 days after they were served with the petition. The 3rd Respondent did not file a reply within the prescribed period and therefore brought an application on the 7th July 2011 for extension of time to file its reply and to deem its reply which was filed on the 22nd of June 2011 as properly filed and served. While this motion was pending, the 1st Respondent by an application dated and filed on the 13th of July 2011 sought for the following reliefs:
“1. An order granting leave to the 1st Respondent/Applicant to move this motion on notice before the pre-hearing session.
2. An order dismissing this petition as abandoned.
The grounds for the application to dismiss the petition as set out in the 1st Respondent’s application are as follows:
1. The petitioners have failed to comply with the express provisions of paragraph 18(1) of the First schedule 10 the Electoral Act 2010 as amended.
2. The Respondents have also failed to comply with paragraph 18(3) of the First schedule of the Electoral Act 2010 as amended.
3. In the premises of grounds 1 and 2 above this petition is abandoned.
4. Non-compliance with paragraph 18(1) and (3) of the Electoral Act 2010 strips this Honourable Tribunal of the jurisdiction to hear and determine this petition.”
upon hearing learned counsel for parties to the petition in this application, the Tribunal found the application meritorious and therefore dismissed the petition on the ground that the petitioners failed to comply with the relevant provisions of paragraph 18[1] of the 1st schedule to the Electoral Act 2010 as amended. It is against the ruling that the Appellants have brought this appeal. Their notice of appeal dated 18th August 2011 contains one ground of appeal which I reproduce hereunder without its particulars as follows
“The Honourable Tribunal erred in law when it dismissed the petition on the ground that the petitioner failed to file pre-trial application within time.”
Parties filed and exchanged briefs of argument. At paragraph 2.1 of the Appellants’ brief of argument dated and filed on the 2nd September 2011, Mr. N.H. Ajie, learned counsel for the Appellant, who also settled the Appellants, brief of argument formulated three issues for determination of this appeal. These issues read as follows:-
“[a] whether the refusal of the lower Tribunal to hear and determine the motion of the 3rd Respondent for extension of time did not occasioned [sic] a miscarriage of justices in this case?
[b] whether the motion of the respondent for dismissal of petition was competent same having no valid affidavit supporting the motion?
(c) Whether the court had jurisdiction to hear the motion for dismissal when the said motion was incompetent for lack of supporting affidavit?
The 1st Respondent formulated one issue only for the determination of the main appeal. The issue which is at page 5, paragraph 3.2 of the 1st Respondent’s brief of argument dated 7th September 2011 and filed on the 9th September, 2011, but deemed filed on 19/11/2011 reads thus:-
“Whether the learned lower Tribunal was right in dismissing the Appellants petition as abandoned.”
At paragraph 4 of the same brief, Mr. E.C. Aguma, learned counsel for the 1st Respondent who settled the 1st Respondent’s brief of argument issued a notice of preliminary objection which is argued at page 5 paragraph 5.1 -page 8 paragraph 5.13.
One issue only was formulated for determination of this appeal for the 3rd Respondent. It reads thus:-
“Whether on the facts and circumstances of this case, the tribunal was justified in dismissing the Appellants’ petition.”
When the appeal came up for hearing on the 29th of September 2011, Mr. E.C. Aguma, learned counsel for the 1st Respondent did not seek for leave of the court to argue the preliminary objection before the hearing of the appeal.
Mr. Ajie, learned counsel identified and adopted the Appellants brief of argument. Mr. Aguma then sought to argue the preliminary objection, but he was reminded that the preliminary objection had been abandoned, since he failed to move same before the hearing of the Appear. Learned counsel admitted that the preliminary objection was inadvertently abandoned. I therefore find the preliminary objection abandoned same and all the argument canvassed thereupon are hereby struck out.
The Appellants filed only one ground of appeal, but have formulated three issues for determination of this appeal. The three issues formulated by the appellants are ominously silent as to which of the ground of appeal any of the issues arose.
In arguing the issues learned counsel for the appellants failed to relate any of them to the ground of appeal. Though an issue under the rules of brief writing may encompass one or more grounds of appeal, it is incompetent and inelegant to formulate more issues than the grounds of appeal as such exercise is frowned at and deprecated by this court. In Nwanko v. F.R.N [200] 3 NWLR (Pt.809] 1 at 25 paragraph D-E, this court per Ekpe JCA said:-
“‘In the appellant’s Notice of appeal, there is only one ground of appeal, but there are six issues for the determination of the appeal, formulated in the appellants, brief of argument,.
It is an elementally principle in brief writing that issues formulated in a brief must of necessity arise or be related to the grounds of appeal filed. The issues should not be so prolix and proliferate as to be moved in member than the grounds of appeal on which they are related or based … When in a appeal, an issue formulated in the brief of argument is not supported by or related to any of the grounds of the grounds of appeal filed, such an issue is not determination by the court and should be discountenanced and struck out by the court.” See Ibrahim v. INEC & ORS [1999] 8 NWLR [Pt.614] 334; Ishie v. Mowanso (2000) 13 NWLR (Pt.684) 279; Modupe v. The State (1988) 4 NWLR (pt.87) 130. In Abioye v. Afolabi (1998) 4 NWLR (pt.545) 296, it was held that an issue for determination which is not related to any of the grounds of appeal filed is incompetent and will be discountenanced or disregarded. In the instant appeal, apart from proliferation of the issues, learned counsel for the appellant has failed to tie any of the issues to the sole ground of appeal. The issue of fishing out which of the issues is related to the ground of appeal is now left for the court. It must be made clear therefore that it is not the responsibility of this court to search through the issues formulated parties by with a view to tying them to the grounds of appeal.
This is so because any attempt by the court to do so will amount to descending into the arena of contest and the dust raised therefrom is capable of beclouding the court’s vision. It is the duty of the learned counsel for the parties to articulate the briefs which they file and adopt before this court. This much was pointed out to the learned counsel for the appellant who seemed to have appreciated the point.
Finally I want to make it clear that this court very much deprecates the rather increasing habit of some counsel who appear before us of showing very little care in the way and manner papers relating to appeal in this court are brought up.
Some counsel hardly take sufficient pains in the manner issues for determination of appeal are drafted.
The issues for determination of appeal are very important foundation for the hearing of the appeal and if they are defectively drafted, the foundation upon which the appeal will be heard will be too weak to hold counsel’s submissions.
The sole ground of appeal without its particulars has been reproduced elsewhere in this judgment. However even at the risk of repetition, I reproduce the said ground of appeal hereunder as follows:-
“The Honourable Tribunal erred in law when it dismissed the petition on the ground that the petitioner failed to file pre-trial application within time.”
The first issue formulated by the learned counsel for the appellants containly does not arise from the ground of appeal reproduced herein above. The 1st issue attacks the Tribunal’s refusal to hear the 3rd Respondent’s motion for extension of time. According to the learned counsel such failure occasioned a miscarriage of justice. Such a complaint ought to have come from the 3rd Respondent at the Tribunal, whose application was refused. It did not complain. At best it had a right to also withdraw its application. If there was any miscarriage of justice at all, it was to the applicant whose application was not heard. The failure to hear the application cannot constitute an error on the part of the Tribunal, since it did not form part of the ruling complained of. The ratio decidendi in the tribunal’s ruling is that no application for pre-hearing notice was filed at the time the prescribed period under paragraph 18 of the 1st schedule expired. It was not based on lack of hearing the 3rd Respondent’s application. The first issue is therefore at large and not based on the ground of appeal. It is therefore incompetent and it is hereby struck out.
The 2nd issues for determination refers to the competence of the 1st respondent’s motion for dismissal of the petition. It is not therefore on the error committed by the Tribunal as alleged in the sole ground of appeal. It therefore does not arise from the ground of appeal. It is incompetent and accordingly struck out.
The 3rd issue attacks the jurisdiction of the Tribunal.
Jurisdiction of the Tribunal is not made a ground of appeal.
The issue of jurisdiction can be raised at any time, even on appeal for the 1st time. However such jurisdictional issue must be apparent on the face of the record. Where the jurisdictional issue is not so apparent on the face of the record, the party raising it must give sufficient notice to the other parties by making it a ground of appeal. In the instant case/ there is nothing apparent on the face of the record that the Tribunal lacks jurisdiction to hear the motion for dismissal of the petition and the issue of jurisdiction is not made a ground of appeal in the notice of appeal. This issue is therefore not properly raised and canvassed. It is incompetent and it is also struck out.
Since all the issues for determination of the appeal as formulated by the appellants have been struck out, the appeal in deemed abandoned.
It would appear that the appellants, quarrel with the decision of the Tribunal is hinged on the fact that pleadings had not been completed since the 3rd Respondents had filed a reply and its application for extension of time to do so was pending before the Tribunal. This argument is not tenable where time to file processes is regulated by statute. Once time for pleadings as provided for by law has expired, such pleadings are deemed closed. Now even if the extension of time sought by the 3rd Respondent had been granted, the Tribunal was not in a position to extend time for the Appellant to apply for pre-hearing notice.
In Okereke v. Yar’Adua [2008] 12 NWLR [Pt 1100] 95 at 127 paragraph E-F, the supreme court, per Onnoghen JSC said:-
“It is settled law that where legislation lays down a procedure for doing a thing there should be no other method of doing it”See CCB Plc v. A.G. Anambra state [1992]10 SCJ 137 at 163; Buhari v. Yusuf [2003] 14 NWLR [Pt.84 1] 446 at 498.
In the same case of Okereke v. Yar’Adua [supra] at 118 paragraph B-C, their Lordships of the Apex Court held:-
“secondly, sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither the petitioner nor the respondent files an application for pre-hearing session, the Tribunal or court is under a duty to ‘dismiss’ the petition as abandoned and no application for extension of time to take that step shall be filed or entertained.”
For all I have said therefore, this appeal lacks merit and ought to be dismissed.
Accordingly same is hereby dismissed. There shall be N20, 000.00 costs in favour of each set of respondents and against the Appellants.
M.D. MUHAMMAD, J.C.A.: I agree.
T.O. AWOTOYE, J.C.A.: I agree.
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Appearances
MR. N.H. AJIEFor Appellant
AND
MR. E.C. AGUMA with I.L. Adoo Esq for the q1st Respondent
MR. AKPADIAHA EBITU for the 3rd Respondent
2nd Respondent served (absent)For Respondent
