RABE NASIRU V. SULE ALI BINDAWA & ORS
In The Court of Appeal of Nigeria
On Monday, the 15th day of March, 2004
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
BABA ALKALI BA ABA Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
RABE NASIRU Appellant(s)
- SULE ALI BINDAWA
2. THE RESIDENT ELECTORAL COMMISSIONER,
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RETURNING OFFICERS, MANI, BINDAWA FEDERAL
CONSTITUENCY OF KATSINA STATE
4. THE ELECTORAL OFFICERS,
MANI, BINDAWA FEDERAL
CONSTITUENCY OF KATSINA STATE
5. THE RETURNING OFFICERS,
ALL THE WARDS INMANIAND BINDAWA
LOCAL GOVERNMENT AREAS
6. THE RETURNING OFFICERS,
MANI AND BINDAWA LOCAL
GOVERNMENT AREAS OF KATSINA
7. THE PRESIDING OFFICERS,
ALL THE POLLING STATIONS BINDAWA
AND MANI LOCAL GOVERNMENT AREAS
OF KATSINA STATE
8. THE INDEPENDENT NATIONAL
ELECTORAL COMMISSION (INEC) Respondent(s)
UMOREN, J.C.A. (Delivering the Leading Judgment): The appellant and the respondents contested for the legislative seat of the Mani/Bindawa Federal Constituency of Katsina State, on 12th April, 2003. They contested on the platforms of the People Democratic Party (P.D.P.) and the All Nigeria Peoples Party (ANPP) respectively.
At the conclusion of the election, the 1st respondent was declared the winner and returned as duly elected.
The appellant was not satisfied with the results declared. He proceeded to the Governorship and Legislative Houses Election Tribunal, Katsina, and on the 14th May, 2003, filed a petition challenging the return of the 1st respondent as the winner of the election of 12th April, 2003, into the House of Representatives of the National Assembly for the Mani/Bindawa Federal Constituency of Katsina State.
The 1st respondent, on being served with the petition, entered a conditional appearance and later filed his reply incorporating 10 grounds of objection and a motion on notice praying the tribunal to strike out the petition. The tribunal considered the objection first by virtue of paragraph 49(5) to the First Schedule to the Electoral Act, 2002, and ruled that the petition was incompetent and struck it out.
Dissatisfied with the ruling of the tribunal, the appellant has now appealed against that ruling to this court as per his notice and grounds of appeal at pages 94 – 101 of the record.
In this court, the 1st respondent raised a preliminary objection to the competence of the notice and grounds of appeal dated 24th June, 2003 and filed on 25th June, 2003.
The objection is taken on four grounds as follows:
i. Particular (a) to ground 1 is vague and conveys no meaning; while.
ii. Particulars (f) and (g) to ground 1 are argumentative.
iii. Ground 2 of the grounds of appeal and its particulars merely narrative, argumentative repetitive.
iv. Ground 4 as couched is not cognizable in law. The particulars thereto are unwieldy, narrative, argumentative and prolix.
He further prayed the court to strike out all issues formulated in the brief based on the said incompetent grounds and particulars.
He further prayed the court to strike out “issue C” or “issue No.3” in the appellant’s brief for not being covered by any ground of appeal.
In the alternative learned Counsel urged the court to strike out the entire brief for being confusing, contradictory, misleading, unwieldy, verbose and not in conformity with the Court of Appeal Rules regulating preparation of briefs of arguments.
Pursuant to Order 6 of the Court of Appeal Rules, the parties filed their respective briefs of argument. Appellant filed his brief and reply brief. The first respondent filed his 1st respondent’s brief while 2nd – 8th respondents filed their brief.
The appellant distilled the following issues in his brief:
“(a) Whether the motion on notice of preliminary objection of the 1st respondent dated 28th May, 2003, is competent.
(b) Whether the petition is incompetent by reason of alleged non-compliance with paragraph 4(1)(c) and section 133(2) which rendered the tribunal without any power or discretion than to strike it out.
(c) Whether considering the grounds, facts in support and the prayers, the petition is void and without cause of action.”
1st respondent framed the follwing issues:
“(i) Considering the state of the petition, the objection taken to it and the provisions of the Electoral Act, 2002, whether or not, the lower tribunal was right in dismissing the petition grounds 2, 3 and 4.
(ii) Whether or not, the motion filed by the respondent praying for the dismissal/striking out of the petition was competent – ground 1:”
2nd – 8th respondents adopt and rely on issues as formulated by the 1st respondent.
Since the 1st respondent filed a notice of intention to raise preliminary objection, it is apt at this stage to examine the issues raised in the notice of preliminary objection. The objection affects ground 1 of the grounds of appeal, particulars (a), (d), (f) and (g) ground 2 and ground 4.
The 1st respondent started off with particular (a) to ground 1 of the grounds of appeal. The complaint of the 1st respondent here is that the particulars simply recast or reproduce what the learned Tribunal said in part of its ruling and nothing more.
For ease of reference, I think I should reproduce all the grounds of appeal and their particulars. They are as follows, that is to say:
(1) Ground One
Error in law
The tribunal erred in law, when it acted on its own evidence and evidence of counsel to the 1st respondent from the bar to validate and hold competent the motion on notice dated 28th day of May, 2003.
Particulars of error
(a) The election tribunal on page 4 of its ruling said:
“Upon a view of the motion for preliminary objection, dated 28th May, 2003, it is obvious that it bears a signature that is not that of Chief Wole Olanipekun, SAN. Rather, the signature on it, which signatures is legible enough is that of U. Igunma. However, there is a prefix to the signature and the name of Chief Wole Olanipekun, SAN. That prefix is the word, “for”. This prefix no doubt shows that the signature of U. Igunma is affixed on behalf or on authority of Chief Wole Olanipekun… In fact, the name U. Igunma is the same with that of one of the lawyers, who has been and was in the team of Chief Olanipekun, SAN in this petition. Moreover, learned Counsel for the petitioner, who raised the issue of signature did not in anyway show that the signature was not made by the authority of Chief Wole Olanipekun (SAN) …Consequently; it is the firm view of this tribunal that this motion is competent before it.”
b. There is no legally admissible evidence that the signature on the said motions is that of U. Igunma.
c. By the relevant provisions of the Electoral Act, 2002, and the Federal High Court (Civil Procedure) Rules, 2000, all election tribunal processes for the 1st respondent must be signed by him or his counsel/solicitor.
d. The motion of preliminary objection by which the 1st respondent objected to the competence of the petition, bore on its face, the imprimatur of an unknown person or thing purported to be made on behalf of Chief Olanipekun, SAN as found by the tribunal on 10th June, 2003, in the case of Manir Yakubu v. Umaru lbrahim Tsauri & 7 Ors. petition No. EPT/KTS/01/03 at page 65 thus:
“Upon viewing the motion, it was seen that the learned Counsel did not sign it personally, but it was signed for him by unknown person.”
The motions in the two cases were signed in the same identical manner.
e. It is trite principle of law that delagatus non protest delegare i.e. a delegate, can not himself, delegate. Chief Olanipekun is the agent of the 1st respondent and can not delegate the authentication of the said motion.
f. The burden of delegation of authority to sign the motion was on the 1st respondent counsel, who claimed delegation which they failed to discharge and not on the petitioner as wrongly placed by the tribunal.
g. The election tribunal has no choice in the matter, other than to have declared the process and all that it generated null and void ab initio. A person cannot contract himself out of the requirements of the law.
2. Ground Two
Error in law
The tribunal erred in law, more particularly, having regard to the state of the pleadings, on whom the burden of proof lay and exceeded its jurisdiction, when it held inter alia as follows:
“On issue of scores of candidates, it has been decided that the scores to be stated are the official scores of the Electoral body and not what (sic) petitioner thinks or thought should be the scores …Consequently, this tribunal holds that since there was no official scores of candidates stated which amount to not stating the scores of candidates, the petition has not complied with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002 and as a result incompetent.” (Italics mine)
Particulars of error
a) The petitioner stated in paragraph 2 of the petition that the returning officer declared that he scored 26,908 and the 1st respondent scored a total of 57,215.
b) The 1st respondent admitted the said averment in paragraph 4 of his reply thus:
“The 1st respondent admits paragraph 2 of petition to the extent that… the scores were actual votes scored and declared and the 1st respondent was actually declared as duly elected. The 1st respondent pleads Form EC8E.”
c) It is trite law that the concept of proof anticipates a disputed state of affairs and that which has been admitted as is this instance needs no further proof.
d) It was not the case of the 1st respondent that, what was stated in the petition is not the official scores, but that more than two candidates contested the election and that the names and scores were not stated in accordance with the Electoral Act, 2002.
e) The tribunal exceeded its jurisdiction, where it made out a case of official scores of candidates for the 1st respondent.
3. Ground Three
Error in law
The tribunal erred in law, when it misdirected itself that the improper joinder of the 4th to 7th respondent by amalgamation rendered them no juristic persons which offended section 133(2) of the Electoral Act, 2002, thereby making the petition incompetent and struck out the 3rd to 7th respondents.
Particulars of error
a) The tribunal did not find that the 3rd respondent was improperly joined by amalgamation. Therefore, there was no basis for striking out his name.
b) The identities of each person constituting the class of respondents serialized as 4th to 7th respondents are clearly and properly stated in the petition.
c) The improper serialization of the respondents is a matter of form, which the tribunal could rectify by amendment either on its own motion, or at the instance of the petitioner and not shut out the petitioner by its stance, that non application will be entertained except that of preliminary objections.
d) The 1st respondent has no locus standi to object to the “improper joinder” of the 3rd to 4th respondents.
e) The 1st respondent and the tribunal did not point to one single complaint in the petition made against the said respondents.
f) The improper serialization of 3rd to 7th respondents is a mere irregularity.
Error in law
The tribunal erred in law, when it upheld the submissions of the learned Counsel to the 1st respondent that the petition discloses no reasonable cause of action which rendered it (petition) incurably incompetent and liable to be struck out which it did in that facts of determination of lawful votes were not pleaded, paragraphs 3A and 4 are contradictory and prayers 5A and B render the petition void, because the petitioner prayed to be returned as elected at the same time pray for nullification of the election.
Particulars of error
a) The petitioner pleaded clearly the material facts necessary for the determination of lawful votes in paragraph 4B, C and D of the petition.
b) The issue of votes scored at every polling station, votes that ought to have been credited to the petitioner etc, are matters which the tribunal could have used its power to order for further particulars having regard to the provision of paragraphs 5, 17(1) and 49(1) of the 1st Schedule to the Electoral Act.
c) Paragraph 3 of the petition is different, distinct and separate from paragraph 4 and are in the alternative, having regards to the prayers in support which are in the alternative.
d) Prayers 5A and B are clearly stated to be in the alternative.
e) Alternatively, the tribunal was bound to apply the doctrine of severance on grounds and prayer in the petition and not to hold the petition incompetent.
Particular (a) to ground one is reproduced elsewhere in this judgment. The particulars simply reproduce what the election petition tribunal said. We are not told what is wrong with what the tribunal said. In other words the particular has nothing to relate it to the complaint in ground one. The particular appears dangling in the air without anything to anchor or connect it to the appellant’s complaint.
In his reply, the appellant in his argument at paragraphs 1.03 of his reply brief, supplies credence to the 1st respondent’s argument. Here again, instead of taking the issues one by one as treated by the 1st respondent, the appellant lumps all issues in paragraphs 2.4, 2.5 and 2.9 of 1st respondent’s brief together. The point is, if reliance is to be placed on Obembe v. Ekele (2001) 10 NWLR (Pt. 722) 677 at 689 paragraphs A -B as submitted by the appellant, has he brought out an issue of law that arises for consideration? The purpose of grounds of appeal is to give the other side an opportunity of knowing the case they have to meet on appeal. N.I.P.C. Ltd. v. Thompson Organization (1969) 1 All NLR 138. A ground of appeal that does not satisfy this criterion is in no way competent and arguable. In the decision in Obembe v. Ekele (supra) the court held that a ground of appeal being argumentative alone is not sufficient to deny a right of appeal to the appellant. But in this appeal, the particulars did not only make the ground argumentative but also prolix, vague etc. as canvassed by the 1st respondent. The appellant did not argue that there is an issue of law that arises for consideration and the court is not allowed to descend into the arena and take up gloves on his behalf. An appeal is a reflective medium for challenging a judicial decision, where all cards are laid on the table for a calm and dispassionate review and not a circus for scare mongering where an appellant can stir up the hornet’s nest or bluff his way through with a display of high fatupin grounds of appeal as a show piece of hollow strength to test a palpably ridiculous claim see Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254. For avoidance of doubt, an appeal is not decided on a litany of grounds of appeal. This, notwithstanding that there is no limitation on the number(s) of grounds of appeal, they must be couched and framed concisely as provided for by Order rules 1(2) and (3) of the Court of Appeal Rules, 1981 (as amended) Engineering Enterprises v. A.-G., Kaduna State (1987) 2 NWLR (Pt. 57) 381; Aliyu v. Aturu (1999) 7 NWLR (Pt. 612) 536; Universal Vulcanising (Nig.) Ltd. v. ljesha United Trading & Transport Co. Ltd. (1992) 9 NWLR (Pt. 266) 388.
The 1st respondent raised objection in respect of particular (a) to ground 1, particular (d) to ground 1; particulars (f) and (g) to ground 1. In the same vein the 1st respondent attacked ground 2 as couched and particulars (c), (e), (b) and (d) to it.
There is in my very respectful view, nowhere that the appellant has answered their objection seriatim except to lump them together and make it difficult to see wood from trees.
At page 4 paragraph 2.8 of the appellant’s brief, the 1st respondent objected to the appellant’s ground 4 of the grounds of appeal in this way:
“2.8. As couched, ground 4 contravenes the unambiguous provision of Order 3; rule 2(2) of the Court of Appeal Rules. Apart from the fact that this ground erroneously alleges error of law and misdirection, it is completely, unwieldy and narrative. He relied on Idaayor v. Tigidam (1995) 2 NWLR (Pt. 377) 359; Geosource Ltd. v. Biragbara (1997) 5 NWLR (Pt. 506) 607 at 616.
2.9. Almost all the particulars supplied under ground 4 are argumentative, if not narrative, particularly particulars (b), (c) and (e) thereof.
1.04. In response to the argument contained in paragraph 2.8 of the 1st respondent’s brief (…) it is submitted that one is at a loss as to where the learned SAN, with all due respect got the idea that the said ground alleged error of law and misdirection.”
For ease of reference he reproduces ground 4 without particulars elsewhere in this judgment.
Learned appellant’s counsel went further to submit that the said couched. I am unable to appreciate how the particular supports the ground of appeal. Particular (d) to ground 1 suffers from the same weakness as particular (a) thereto. They cannot, without more support a ground of law as ground 1 was intended to be. With humility, I would wish to think that a ground of appeal is a ground of law, when it questions a misunderstanding by the lower court or tribunal of the law or a misapplication of the law to the fact already proved or admitted.
A ground of appeal on the other hand, that questions the evaluation of facts by the lower court or tribunal before the application of law is a ground of mixed law and fact. See Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484.
As the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on facts and circumstances of each case, whether or not he exercises it rightly in any particular case, is at least a question of mixed law and fact. See Ifedioralz v. Ume (1988) 2 NWLR (Pt. 74) 5.
On the foregoing, i am unable to appreciate or conjecture how particulars given in (a), (d) and other of ground could support a ground of pure law.
It is important to state also, that since particulars are unrelated to the ground(s) of appeal, issues formulated therefrom are consequently unrelated to the ground. Grounds of appeal must arise from the judgment. In Saraki v. Kotoye (supra) Karibi-Whyte, JSC at page 345 said:
“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
Particulars (a) and (d) of ground 1 which are inseparable from the said ground are an attack on the obiter dicta in the case and not the ratio. The decision in Hambe v. Hueze (supra) is unhelpful to the appellant.
On issue No.3, I am unable to see in the record where the tribunal held the petition to be “void”. I have seen “without cause of action” but not “void.” The petition was struck out because it disclosed no cause of action, not because it was void. The addition by the appellant of the word void alters the import of the judgment in a way. Cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim.
To our mind, it is, in effect, the fact or combination or facts which gives the plaintiff his cause of complaint and, the consequent damage. As Lord, Esher put it in Cooke v. Gill (1873) L.R. 8 C.P. 107 and later in Read v. Brown (1889) 22 Q.B. 128 (CA). It is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. See also Kusada v. Sokoto Native Authority, S.C. 131/68 delivered on 13th December, 1968, where the definition in Read v. Brown (supra) was referred to with approval at page 22 1. However, when a thing is void, it does not exist, you cannot put something on nothing, it will just not stand.
It is my view that the two words should be used economically; not interchangeably.
The mix-up by the appellant in numbering his issues as (a), (b) and (c) in one breath and (1), (2) and (3) in another was enough to confuse the mind of a reader. But since the 1st respondent acquiesced in it, he is bound by it and I make no issue of the mix-up.
The reasons given by the appellant for the slipshod in his brief is not tenable. There is no excuse for one to bite more than one can chew.
Even if the appeal were to succeed on ground 3, having been dismissed on three grounds, there would be no chance of its succeeding. Ground 3 alone, if argued cannot help the appeal. It is a waste of judicial time to go into it as it cannot by itself sustain the appeal.
On the whole, from the foregoing analysis of facts and law, it is my respectful view that the preliminary objection succeeds. The appellant’s brief based on the ground of appeal fails and is struck out. The appeal goes with it. Each party to bear its costs Since 2nd to 8th respondents adopted 1st respondent brief, all the briefs are considered together.
ADAMU, J.C.A.: I have read, before now, the leading judgment of my learned brother, Umoren, JCA, in this appeal. I agree with the conclusion reached thereon that the preliminary objection against the grounds of appeal has succeeded. Consequently, the incompetent grounds of appeal as well as the appeal itself are hereby struck out. I also, make no order on costs.
BA’ABA, J.C.A.: I have had the preview of the judgment of my learned brother, Umoren, JCA, with which I respectfully agree. For the same reasons discussed to the leading judgment, I too, uphold the preliminary objection to the competence of the grounds. Consequently, the grounds are struck out. I abide by the consequential order in the leading judgment.
ALAGOA J.C.A.: I have had a preview of the Judgment of my learned brother, J. J. Umoren, JCA and I am of the respectful view that the preliminary objection should succeed. The appeal therefore, lacks merit and is dismissed. I abide by the order on costs contained in the lead judgment.
Joe Dappa, EsqFor Appellant
Shema S. Ibrahim, Esq., (with him, Uyi Igunma, Esq.; N.
Idenala, Esq.; C. A. Adesida, Esq.; D. H. Mohammed, Esq. and
S. S. Sani, Esq.)
Abdul-Fatai Aiyelero, Esq.For Respondent