RT. HON. EMEKA IHEDIOHA & ANOR v. OWELLE ROCHAS ANAYO OKOROCHA & ORS
(2015)LCN/7998(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of September, 2015
CA/OW/EPT/GOV/01/2015
RATIO
PRACTICE AND PROCEDURE: SERVICE OF PROCESSES; WHETHER THE PROVISIONS OF THE RULES REQUIRING A PLAINTIFF, PETITIONER OR APPELLANT TO PROVIDE ADDRESS FOR SERVICE OF AN ORIGINATING PROCESS OR ANY OTHER PROCESS ON THE DEFENDANT OR RESPONDENT HAVE ALWAYS BEEN CONSTRUED TO BE MANDATORY AND THE EFFECT OF NON COMPLIANCE
A long line of cases from NGELIZANA v. HINDI (1965) NNLR 12, ENEBI v.YACHIM (1965) NNLR 26 to KALIEL v. ALIERO (1999) (supra) the provisions of the Rules requiring a plaintiff, petitioner or appellant to provide address for service of an originating process or any other process on the defendant or respondent have always been construed to be mandatory and the effect of non-compliance therewith is that the process “shall not be deemed to have been filed” and therefore liable to be struck out as an incompetent process. In NIGERIAN POSTAL SERVICE v. ALFRED EZEKIELIDIOHO – NO. CA/C/48/2013 of 30th April, 2013 reported: (2013) LPELR – 20820 (CA) this Court per Tur, JCA held that address for service is very important and this must be strictly adhered to, and that to serve otherwise would amount to substituted service which always requires prior leave of Court sought and granted by the Court that issued the process. per. EJEMBI EKO, J.C.A.
APPEAL: NOTICE OF APPEAL; THE EFFECT OF THE FAILURE TO STATE THE NAMES AND ADDRESSES OF PARTIES DIRECTLY AFFECTED BY THE APPEAL IN THE NOTICE OF APPEAL
In the course of my considering this issue I have come across these cases: DYERIS V. MOBIL OIL NIG Plc. (2009) LPELR- 8914 (CA); ORUOBU v. ANEKWE (1997) 5 NWLR (Pt. 506) 618; DEEN MARK CONST. Co. LTD v. ABIOLA (2002) 3 NWLR (Pt. 754) 418, which held, while interpreting order 3 Rule 2 (1) of the Court of Appeal Rules 2002 (in pari materia with Order 6 Rule 2(1) of the Court of Appeal Rules 2011), that failure to state the names and addresses of all the parties directly affected by the appeal in the Notice of Appeal (i.e paragraph 5 of Form 3) is a mere irregularity which does not, or cannot, affect the hearing of an appeal on the merit. The objection in this case, is not that the failure to state the names and addresses of the parties directly affected by the appeal is a fundamental vice that goes to the roots of the appeal. The objection is that since the Notice of Appeal is an originating process the failure of the appellants to furnish the addresses for service of the Notice of Appeal on all the respondents offends Order 2 Rule 3 of 2011 Rules of this court. Order 2 Rule 3 is all about “service” of processes. No doubt, the Notice of Appeal is a process that requires to be served. Order 2 Rule 3 provides the sanction for failure or omission to endorse on the Notice of Appeal an address for service on the respondent. It is clear and unambiguous in what it provides: where under the Rules of this court, any notice or any other process is required to have an address for service endorsed on it, and the address for service is not so endorsed on it, the notice or process shall not be deemed to have been properly filed unless such address has been endorsed on it. The purpose of all types of service of processes is to give notice to the other party of the claim or action against him, so held by the Supreme Court in UNITED NIGERIA PRESS v. ADEBANJO (1969) 1 All NLR 431. Order 2 Rule 3, clearly, has been fashioned or drafted in line with the Supreme Court decisions in MARIAM OBIMONURE v. OJUMOOLA ERINOSHO & ANOR. (1996) 1 All NLR 250; SCOTT-EMUAKPOR v. UKAVBE (1975) 12 SC 41 to the effect that where notice of any proceedings is required, failure to notify any party thereto is a fundamental omission which entitles the party not served, and against whom any order is made in his absence, to have the order or decision set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled. The issue of service, particularly of an originating process, has always been regarded as one that is fundamental and which goes to the root of proper procedure in litigation. See ODITA v. OKWUDINMA (1969) 1 All NLR 228 A 31-232 where the Supreme Court held that failure to serve a process, where service is required, renders the process which was not served as required, and the proceedings thereon, a nullity. The apex court held in that case that such omission and the proceedings thereon can not be regarded as a mere irregularity, but a fundamental vice. The Law Lords of the apex court further reiterated this point in SKEN CONSULT LTD v. UKEY (1981) 1 SC 6 that the failure goes to the root of the jurisdiction of the court and therefore, accordingly renders the proceedings, without previous service of the process giving notice of, a nullity. The English cases of CRAIG v. KANSSEN (1943) K.B. 256 at 262-263; (1943) 1 All E.R. 108 at 113; WHITE v. WESTON (1968) 2 All E.R. 824 at 846, cited with approval in the SKENCONSULT case (supra) all underlined the importance of service of an originating process and held particularly by Lord Greene M.R. in CRAIG v. KANSSEN (supra) that:- it is beyond question that failure to serve process, where service is required, is a failure which goes to the root of our conception of the procedure in litigation. per. EJEMBI EKO, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF A COURT OF RECORD TO JEALOUSLY GUARD THE JUDICIAL PROCESS FROM BEING RIDICULED
A court of Record must jealously guard the judicial process from being ridiculed and for the purpose of achieving a just, equitable and expeditious dispensation of justice. See DINGYADI v. INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154. per. EJEMBI EKO, J.C.A.
PRACTICE AND PROCEDURE: PRE-HEARING NOTICE; THE PURPOSE OF PRE-HEARING NOTICE
The purpose of Pre-Hearing Notice, as held in SA’EED v. YAKOWA (2013) All FWLR (Pt. 692) 1650 at 1686, is to inform the parties of the impending hearing in order that they may attend the hearing. per. EJEMBI EKO, J.C.A.
ELECTION PETITION; AN APPLICATION TO SET ASIDE AN ELECTION; ON WHAT GROUND CAN AN APPLICATION TO SET ASIDE AN ELECTION PETITION OR A PROCEEDING RESULTING THEREFROM FOR IRREGULARITY OR FOR BEING A NULLITY, SHALL BE ALLOWED
It is apparent that the Tribunal below failed to consider the provision of Paragraphs 53(2) of the said 1st Schedule to the Electoral Act, 2010 in its decision the subject of this appeal. It provides
53. (2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the fact. per. EJEMBI EKO, J.C.A.
PRACTICE AND PROCEDURE: PRE-HEARING NOTICE; THE PURPOSE OF PRE-HEARING NOTICE
In SA’EED v. YAKOWA (supra) at page 1686 per Ngwuta, JSC the purpose of pre-Hearing Notice is said to inform the parties of the impending hearing and to ensure (their) attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice, a party who has taken part in the proceedings cannot be heard to argue that the rule has not been complied with, more so when there is no allegation of miscarriage of justice from the non-compliance. IPINLAIYE II v. OLUKOTUN (1996) 6 SCNJ 74 at 88; (1996) 6 NWLR (Pt 453) 143; AKHIWU v. PRINCIPAL LOTTERIES OFFICER MIDWEST (1972) 1 All NLR (Pt. 1) 229 at 238; OKWECHIME v. PHILIP IGBINADOLOR (1964) NMLR 132. per. EJEMBI EKO, J.C.A.
APPEAL: GROUND OF APPEAL; WHETHER A COMPETENT GROUND OF APPEAL MUST ARISE FROM THE JUDGEMENT BEING CHALLENGED
It is trite that a competent ground of appeal must arise from the judgment being challenged. In SARAKI v. KOTOYE (1992) 11-12 SCNJ 26; (1992) NWLR (Pt. 264) 156 Karibi-Whyte, JSC stated, of what a ground of appeal is, thus -Grounds of appeal are not formulated in nubibus. They must be firma terra, namely arise from the judgment. However, the ground of appeal, based either on points of critical constitutional importance or general public interest, must be connected with a controversy between the parties. This is the precondition for vesting of judicial powers of the Constitution in the Courts. per. EJEMBI EKO, J.C.A.
APPEAL: GROUND OF APPEAL; THE PURPOSE OF THE GROUND OF APPEAL
The settled principle of law, as regards appeals, is that the ground of appeal against a decision must relate to the decision appealed and should constitute a challenge to the ratio of the decision: SARAKI v. KOTOYE (Supra). The ground of appeal is the reason why the decision appealed is considered by the aggrieved party to be wrong. The purpose of the ground of appeal is, therefore, to isolate and accentuate for attack the basis of the reasoning of the decision being challenged: See EJOWHOMY v. EDOH-ETER LTD (1986) 5 NWLR (Pt. 39) 1; AQUA LTD v. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622; SARAKI v. KOTOYE (Supra). per. EJEMBI EKO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. RT. HON. EMEKA IHEDIOHA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. OWELLE ROCHAS ANAYO OKOROCHA
2. INDEPENDENCE NATIONAL ELECTORAL COMMISSION (INEC)
3. BARR. EMMA NWOSU
4. MONDAY IKOKWU
5. PAUL OGUJIOFOR
6. CHIEF CHRISTIAN OGBUOZURIKE
7. CHARLES ARUAKPA
8. DR. CHIDI MARUME
9. UGOCHUKWU EKWE
10. HON. CHIEF TONY OSUJI
11. BARR. PATRICK UZOUKWU
12. BEN MGBEOJIRIKWE
13. UNAMMA OLEMGBE
14. MIKE IGBOKWE
15. ROBERT OKWUEGO
16. C.L. OKEMILI
17. UGO ONYEMAOBI
18. COMRADE MBEREKPE C.C.
19. CPL UZOEMANA
20. CHIEF CHRIS NWAIKE
21. ENGR. CHIEF IYKE NNADI
22. ONWUBE OKECHUKWU
23. CHIEF PRINCE FESTUS ANUEYIAGU
24. ENGR. NNAMDI NWAKASI
25. BARR. RAPHAEL NWAEBU
26. HON. ONUOHA FRANCIS
27. CYPRIAN OGUCHUKWU
28. EMEKA NKWUME
29. NNAMDI ANOCHIE
30. EBUBEOGU K.O.
31. EZEALA THEOPHILUS
32. HON. GOSTIME ANUAMADI
33. HON. ETHEL OKWARANYIA
34. CHIEF MAXWELL NWOKEJI
35. HON. AUGUSTINE UGOKWE
36. EBO CHINEDUM
37. ALL PROGRESSIVES CONGRESS (APC) Respondent(s)
EJEMBI EKO, J.C.A.?(Delivering the Leading Judgment):
On 16th May, 2015 the appellants, as petitioners, filed their petition No. EPT/IM/GOV/03/2015 challenging the return of the 1st respondent herein by the 2nd respondent as the person duly elected as Governor of Imo State. The 37th respondent, All Progressive Congress (APC) sponsored the candidature of the 1st respondent at the said election contested inter alia by the 1st appellant on the platform of the 2nd appellant, Peoples Democratic Party (PDP).
At the close of the pleadings, said to be on 20th June, 2015, the Petitioners through their counsel, submitted on 23rd June, 2015, a letter dated 22nd June, 2015 to the secretary of the Tribunal hearing their petition requesting the issuance of pre-hearing notice on all the parties in this petition: No. EPT/IM/GOV/3/2015. The letter is at page 257 of the record. At pages 258-259 of the Record there is a Hearing Notice for pre-hearing session, Form TF007, signed by the Tribunal Secretary that is not addressed to anybody in particular. The sum of N300.00 is endorsed on the said form TF007 as the fee paid on the said process issued on 23rd June, 2015.
?At pages 260-265
of the Record of Appeal there is Form TF008, pre-hearing Information sheet, duly signed by the counsel to the Petitioners, K.O. Ahamba, Esq. That process is dated on 23rd June, 2015. The 1st and 37th respondents in the petition and this appeal filed their Answers to the Questions contained in the pre-hearing Information, Form TF008, on 26th June, 2015. The process is at pages 266-268 of the Record. On the 4th July, 2015 the 5th, 13th, 14th, 25th, 30th, and 31st respondents similarly filed their “answers to the questions contained in the pre-hearing Information.” These could be found, respectively, at pages 373-375, 376-378, 379-381, 382-384 and 385-387 of the Record.
The Petitioners had on 3rd July, 2015 paid N300.00 as filing fee for their letter dated 22nd June, 2015 but received by the Tribunal Secretary on 23rd June, 2015. The fact of this payment is endorsed on the letter at page 257 of the record. It is this payment that prompted the 1st and 37th respondents to bring their motion filed on 6th July, 2015 praying the Tribunal below for:
?1. An order granting leave to the 1st and 37th Respondent/Applicants to file and argue the instant application outside of
the pre-hearing session.
2. An Order dismissing this petition as having been abandoned; and or constituting a gross abuse of court process.
The grounds for these reliefs sought by the 1st and 37th respondents, as the applicants, are:
a. The Petitioners/Respondents failed file application for pre-hearing session within 7 days window mandatorily prescribed by paragraph 18(1) of the First Schedule to the Electoral Act, as amended, after close of pleadings.
b. Default in filing application for pre-hearing session within the time prescribed or outside of the time attracts automatic dismissal of the petition as an abandoned petition.
c. The 3rd-36th Respondents were misrepresented as agents of the 37th Respondent/Applicants and/or political parties other than of the 2nd Respondent in the Petition.
d. False address for service on the 3rd-36th Respondents was endorsed on the petition, to wit: APC State Secretariat Owerri.
e. The joining of 3rd-36th Respondents and purporting to serve them at the APC State Secretariat Owerri is an abuse of court process calculated to embarrass and irritate the Respondents/Applicants
?f. The 5th, 13th, 14th, 25th, 30th and 31st Respondents all
filed separate replies to the Petition on the 10th of June, 2015 practically defending the petition and each pleading and deposing on Oath that they were members of and officers of the 2nd Petitioner,
g. This anomalous situation has made it impossible to get this petition triable on the merit and warrants the invocation of paragraphs 7 (e) and 11 (a) to dismiss same in limine.
Upon hearing this application, the Tribunal below partly granted same by dismissing the petition on the ground that the petitioners had abandoned their petition for not filing, within time, the application, under paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended, for the petition to be set down for pre-hearing session. It held that the letter submitted on 23rd June, 2015 was only filed on 4th July, 2015, outside the 7 days prescribed, when the petitioners paid the filing fee therefor.
?After extensive deliberation or analysis of the issue of abuse of the process of court, the Tribunal below dismissed same, holding that there was no abuse of the court’s process. This allegation of abuse of the court’s process proffered against the petitioners by the 1st and 37th
Respondents was treated particularly at pages 610-615 of the Record.
Against this decision delivered on 22nd July, 2015 the petitioners as the appellants, lodged two notices of appeal on 23rd July, 2015 and 26th July, 2015, all within time. They however abandoned the first notice of appeal in preference for the notice of appeal filed on 26th July, 2015. They filed their briefs of argument only in respect of the notice of appeal filed on the 26th July, 2015. In the circumstance the former notice of appeal, filed on 23rd July, 2015, deserves to be and it is hereby struck out.
The 1st and 37th respondents, aggrieved that the Tribunal below refused to dismiss the petition on the ground of abuse of the court’s process, filed their notice of cross-appeal on 4th August, 2015. The notice of the cross-appeal is contained in the Additional Record transmitted on 6th August, 2015.
The appeal and the cross-appeal were heard on 21st August, 2015. In their brief of argument, filed on 4th August, 2015, the 1st and 37th respondents raised, as preliminary objection, that the notice of appeal filed on 26th July, 2015 is incompetent on the grounds that:
?i. It was not signed and sealed
as mandatorily required by the legal Practitioners Act, LFN 2004 (as amended) and the relevant rules of Professional Conduct and the regulations issued pursuant thereto
ii. The failure to put the named 2nd-36th Respondents on notice and serve the appeal process on them robs the court of Appeal of jurisdiction to entertain same. Paragraph 52 of the First Schedule to the Electoral Act, 2010 (as amended); (1) PPA v. INEC (2012) 13 NWLR (Pt. 1317) 215 at 237, paragraphs C-D per Ngwuta JSC; (2) S.S (Nig) LTD v. A.S (Nig) LTD (2011) 4 NWLR (Pt. 1238) 596 at 620, paragraphs B-D
iii. Ground 13 of in the Notice of Appeal and the issue formulated thereon are incompetent, same having raised a fresh issue on appeal which was not canvassed at the trial Tribunal and on which no decision was rendered in the ruling being appealed against; whereas no prior leave was sought and obtained to so canvass the fresh issue.
?As regards the preliminary objection, Chief M.I. Ahamba, SAN of counsel to the Petitioners/Appellants submits that ground (1) of the preliminary objection fails to disclose the particular rule of professional conduct for legal Practitioners that has been violated, and
by that the objectors had failed to give the appellants full notice of what they were to face. He urged that the ground be struck out. It is however clear from the arguments on this point put forward, ex abundati cautela, that the learned senior counsel was neither misled, embarrassed nor put to prejudice by the paucity of particulars he complains of.
It is obvious from the oral arguments put forward by the respective senior counsel for the 1st- 37th respondents, and the appellants that the pith of these grounds of objection is that the notice of appeal was not stamped or sealed by the counsel who settled it in accordance with not the circular of the Chief Justice of Nigeria No. NJC/CIR/HOC/171 of 12th May, 2015. The circular states inter alia:
Once fully operational, a stamp shall be affixed to all legal processes filed at the Registry of any court for such a process to be recognized as duly filed ..
6. Consequently, from 01 June, 2015, all Heads Federal and State Courts shall establish a procedure for the implementation of the Stamp Policy and its full utilization within all jurisdictions.
?The Head of court, for the purpose of this circular as it
relates either to this Tribunal or the Court of Appeal is the President of the Court of Appeal who, by virtue of the powers conferred on him by sections 243 and 285 of the 1999 Constitution, as amended, and section 145 of the Electoral Act, 2010, as amended, is vested with powers to make rules, including Practice Directions, regulating the practice and procedure of the Court of Appeal and election tribunals. Chief Ahamba, SAN submits, and I agree with him, that until rules are made by the Heads of Court pursuant to this circular No. NJC/CIR/HOC/171 on the NBA Stamp Policy the circular is merely conditional or executory. The circular, in paragraphs 4 and 6, speaks for itself. The circular is not yet operational and it can only be operational from when the Heads of Court, in this case the President of the Court of Appeal, “establish procedures for the implementation of the Stamp Policy and its full utilization within all jurisdictions”. The law is trite: he who asserts must prove his assertion. Mr. Owonikoko, SAN for 1st and 37th respondents who makes so much fuss of this Stamp Policy has not been able to establish that the Stamp Policy is “fully operational”
and there has been a procedure established “for the implementation of the Stamp Policy.” As stated by Plato, what is alleged without proof can be denied without proof. Even on this Chief Ahamba, SAN for the appellants has gone extra mile. There is no substance on this head or ground of objection. It is accordingly overruled.
?It is submitted for the 1st and 37th respondents that the failure of the appellants to put the named 3rd-36th respondents on notice and serve the appeal processes on them robs this court of the jurisdiction to entertain the same. For the appellants it is submitted that since the names of the 3rd-36th respondents are clearly reflected on the face of the notice of appeal as respondents to the appeal there has been sufficient compliance with Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 which requires that “the names and addresses of all parties directly affected by the appeal “shall be set forth in the notice of appeal. Mr Owonikoko, SAN of counsel to 1st and 37th respondents, while adumbrating the objection submitted that there is no address for service of the appeal processes on the 3rd – 36th respondents in the appeal contrary to
the provisions of Order 2 Rule 3 of the Court of Appeal Rules, 2011. The response of Chief Ahamba SAN clearly admits that the addresses for service of the appeal processes on the 3rd – 36th Respondents are not provided or set forth on the notice of appeal because they are not parties directly affected by the appeal.
The Notice of Appeal, at pages 631-640 of the Record, does not have addresses for service of the 3rd – 36th respondents. Upon showing Chief Ahamba SAN these pages of the Record clearly not disclosing the address for service of the appeal processes on each of these 3rd – 36th respondents we asked him to read Order 2 Rule 3 of the Court of Appeal Rules since he had harped so much on Order 6 Rule 2(1) of the same Rules. The senior counsel read Order 2 Rule 3 and submitted that the said Order 2 Rule 3 should be read together with Order 6 Rules 2(1) and 9. He submitted further that Order 6 Rule 9 has watered down the effect of Order 2 Rule 3, and further emphasized that only the 1st and 37th Respondents are the persons directly affected by this appeal.
Order 2 Rule 3 of the Court of Appeal Rules, 2011 is very clear and unambiguous. It provides:
?3. Where
under these Rules, any notice or other process is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such address has been endorsed on it.
Appellants’ counsel urges us to read Order 2 Rule 3 of the Rules of this Court together with Order 6 Rule 2 (1) and 9. I have read them, and Order 6 Rules 2(1) and 9 are herein below reproduced, viz:
Order 6 Rule 2(1): 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, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
?9. Notwithstanding Order 2, where in any proceeding in the court below party has given an address for service, Notice of appeal
from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in the like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediately following Rule.
?There is no ambiguity about the purport of Order 6 Rule 9 which is that “where in any proceeding in the Court below a party has given an address for service, Notice of Appeal from any decision made under such proceeding may be served on such party at such address for address.” In the instant case, not all of the 3rd-36th respondents gave their addresses for at the trial Tribunal. Only six (6) of them, that is; the 5th, 13th, 14th, 25th, 30th and 31st respondents gave their addresses for service in their replies to the Petition. The copies of the Petition for service personally on the other respondents (i.e among the 3rd-36th respondents) were, by order of the Tribunal below, to be pasted at the Tribunal notice board. None of them gave their addresses for service of any process relating to the Petition or
proceedings relating thereto at the said trial Tribunal. There was controversy at the trial Tribunal as to the propriety of the false addresses the Petitioners/Appellants endorsed on their Petition as the addresses for service of the Petition on 3rd-36th respondents. In the circumstances the Petitioners/Appellants are/were under obligation to furnish proper address for service of their notice of appeal on the 3rd, 4th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 24th, 26th, 27th, 28th, 29th, 32nd, 33rd, 34th, 35th and 36th respondent; the 5th, 13th, 14th, 25th, 30th and 31st respondents having at the trial Tribunal, each, given their addresses for service in their Replies to the Petition. Notwithstanding that the 5th, 13th, 14th, 25th, 30th, and 31st respondents gave their addresses the appellants still deliberately omitted to endorse their addresses for service on the notice of appeal. I can neither understand nor explain the reason for this stratagem. The notice of appeal is an originating process and it must be served on the respondent in order to put him on notice of the action taken against him that requires
authoritative judicial order or decision. All I can say as regards this stratagem is that it smacks of some mischief or some ulterior intention to delay the quick and expeditious hearing and determination of the appeal by this Court, which by virtue of Section 285(7) of the 1999 Constitution, must be concluded within 60 days from the date of the delivery of the decision, appealed, by the trial Tribunal.
It has been urged on us, my Lords, to hold that Order 6 Rule 9 of the Court of Appeal Rules, 2011 has watered down the effect or consequence of Order 2 Rule 3. This may be so as regards the 5th, 13th, 14th, 25th, 30th and 31st respondents out of the 3rd-36th respondents.
?I have not seen in what manner Order 6 Rule 9 has watered or whittled down the effect or consequence of non-compliance with the mandatory provisions of Order 2 Rule 3 of the 2011 Rules of this Court, particularly as regards the 3rd-36th respondents with the exception of the 5th, 13th, 14th, 25th, 30th and 31st respondents. The purport, ultimately, of Order 2 Rule 3 is audi alteram partem and the fair hearing provisions of Section 36 (1) of the 1999 Constitution, as amended. That is, that every
person against whom a notice of appeal has been filed, or who is a respondent in an appeal shall be given an opportunity to be heard before any decision in the appeal may be given. Contrary to the submissions of the senior counsel for the appellants Order 6 Rule 2 (1), earlier reproduced, requires that every notice of appeal shall have endorsed on it an address for service of the notice of appeal on every respondent in the appeal. It is not a privilege, but a right of the respondent, that he must be given an opportunity to be heard on the appeal. He is therefore accordingly entitled to be served the Notice of appeal. Order 2 Rule 1(a) of the same 2011 Rules of this Court directs that “every notice of appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally.” The exceptions to this directive are when the Court is satisfied “that the notice of appeal has infact been communicated to the Respondent.” See proviso to Order 2 Rule 1. The other exception is when the Court orders substituted service of the notice of appeal under Order 2 Rule 8. The third exception is when the respondent has given the address of a legal Practitioner as
his address for service and the Legal Practitioner continues to be retained by him as his counsel. See Order 2 Rule 6. Ex officio service, under Order 2 Rule 7, is another exception. That is the situation where a Law Officer represents either the Government of the Federal or State or any of the departments thereof.
In the course of hearing this appeal Appellants’ senior counsel submitted that apart from INEC and the 1st and 37th respondents who were made respondents in the petition because allegations were made against them and therefore they were necessary parties to the petition; the other respondents are not necessary parties. Appeal, by virtue of Order 6 Rule 1 of the Rules of this Court, is by way of re-hearing and is generally regarded as a continuation of the original suit, rather than an inception of a new action: See ADEGBITE MOTORS LTD v. ADESANYA (1989) 3 NWLR (Pt. 109) 250 at 266; NGIGE v. OBI (2006) 14 NWLR (Pt.999) 1 at 225; AKPA v. ITODO (1997) 5 NWLR (Pt. 506) 589 at 604. It is for this reason that I find it rather intriguing that the senior counsel in one breath argues that the 3rd-36th respondents who were necessary parties in the petition are
not necessary parties in the appeal. He seems to suggest that their addresses were not endorsed on the notice of appeal because they are not necessarily entitled to be heard in the appeal in which they are made respondents involuntarily. They were necessary parties in the petition because allegations of misconduct were made against them in the petition. See KALIEL v. ALIERO (1999) 4 NWLR (PT. 597). The petition against them having been dismissed or terminated they are entitled to be heard in the appeal that seeks to upturn that decision that enures in their favour. They have accrued right to that victory, and therefore are entitled not only to be served the notice of appeal, but also to be heard in the appeal. In MAIKORI v. LERE (1992) 3 NWLR (Pt.231) 252 it was held by this Court that a Court of law or tribunal will not make an order or give a judgment that will affect the interest or right of any person who is not a party to the case and who was never heard in the matter. From NEC v. IZUOGU (1993) 2 NWLR (PT. 275) 270 at 295, anybody affected by an order of Court is a necessary party who must be heard or given an opportunity to be heard by virtue of Section
36(1) of the 1999 Constitution, as amended.
?Order 6 Rule 2(1) of the Rules of this court, 2011, as I earlier stated, requires that the address of the respondent in every appeal be endorsed on the notice of appeal. Order 2 Rule 3 provides, imperatively, that where under the Rules of this court, any notice or other process is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such address has been endorsed. The extant notices of appeal are required by Order 6 Rule 2 (1) of the Rules of this court to have an address of service on every respondent endorsed thereon. Therefore, reading order 6 Rule 2(1) together with Order 2 Rules 3 it is clear beyond doubt that this notice of appeal which does not have endorsed on it the address for service of the notice of appeal on the each of the 3rd-36th respondents is fundamentally defective. I am aware that the 5th, 11th, 13th, 14th, 25th, 30th, 31st and 33rd respondents come within the exception provided by the proviso to Order 2 Rule 1. Though no address for their service was provided; they however had knowledge of the notice of appeal and have submitted to the
jurisdiction of this Court.
?A long line of cases from NGELIZANA v. HINDI (1965) NNLR 12, ENEBI v. YACHIM (1965) NNLR 26 to KALIEL v. ALIERO (1999) (supra) the provisions of the Rules requiring a plaintiff, petitioner or appellant to provide address for service of an originating process or any other process on the defendant or respondent have always been construed to be mandatory and the effect of non-compliance therewith is that the process “shall not be deemed to have been filed” and therefore liable to be struck out as an incompetent process. In NIGERIAN POSTAL SERVICE v. ALFRED EZEKIELIDIOHO – NO. CA/C/48/2013 of 30th April, 2013 reported: (2013) LPELR – 20820 (CA) this Court per Tur, JCA held that address for service is very important and this must be strictly adhered to, and that to serve otherwise would amount to substituted service which always requires prior leave of Court sought and granted by the Court that issued the process.
?In the course of my considering this issue I have come across these cases: DYERIS V. MOBIL OIL NIG Plc. (2009) LPELR- 8914 (CA); ORUOBU v. ANEKWE (1997) 5 NWLR (Pt. 506) 618; DEEN MARK CONST. Co. LTD v. ABIOLA (2002) 3 NWLR
(Pt. 754) 418, which held, while interpreting order 3 Rule 2 (1) of the Court of Appeal Rules 2002 (in pari materia with Order 6 Rule 2(1) of the Court of Appeal Rules 2011), that failure to state the names and addresses of all the parties directly affected by the appeal in the Notice of Appeal (i.e paragraph 5 of Form 3) is a mere irregularity which does not, or cannot, affect the hearing of an appeal on the merit. The objection in this case, is not that the failure to state the names and addresses of the parties directly affected by the appeal is a fundamental vice that goes to the roots of the appeal. The objection is that since the Notice of Appeal is an originating process the failure of the appellants to furnish the addresses for service of the Notice of Appeal on all the respondents offends Order 2 Rule 3 of 2011 Rules of this court.
?Order 2 Rule 3 is all about “service” of processes. No doubt, the Notice of Appeal is a process that requires to be served. Order 2 Rule 3 provides the sanction for failure or omission to endorse on the Notice of Appeal an address for service on the respondent. It is clear and unambiguous in what it provides: where under the
Rules of this court, any notice or any other process is required to have an address for service endorsed on it, and the address for service is not so endorsed on it, the notice or process shall not be deemed to have been properly filed unless such address has been endorsed on it. The purpose of all types of service of processes is to give notice to the other party of the claim or action against him, so held by the Supreme Court in UNITED NIGERIA PRESS v. ADEBANJO (1969) 1 All NLR 431.
Order 2 Rule 3, clearly, has been fashioned or drafted in line with the Supreme Court decisions in MARIAM OBIMONURE v. OJUMOOLA ERINOSHO & ANOR. (1996) 1 All NLR 250; SCOTT-EMUAKPOR v. UKAVBE (1975) 12 SC 41 to the effect that where notice of any proceedings is required, failure to notify any party thereto is a fundamental omission which entitles the party not served, and against whom any order is made in his absence, to have the order or decision set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled.
?The issue of service, particularly of an originating process, has always been regarded as one that
is fundamental and which goes to the root of proper procedure in litigation. See ODITA v. OKWUDINMA (1969) 1 All NLR 228 A 31-232 where the Supreme Court held that failure to serve a process, where service is required, renders the process which was not served as required, and the proceedings thereon, a nullity. The apex court held in that case that such omission and the proceedings thereon can not be regarded as a mere irregularity, but a fundamental vice. The Law Lords of the apex court further reiterated this point in SKEN CONSULT LTD v. UKEY (1981) 1 SC 6 that the failure goes to the root of the jurisdiction of the court and therefore, accordingly renders the proceedings, without previous service of the process giving notice of, a nullity. The English cases of CRAIG v. KANSSEN (1943) K.B. 256 at 262-263; (1943) 1 All E.R. 108 at 113; WHITE v. WESTON (1968) 2 All E.R. 824 at 846, cited with approval in the SKENCONSULT case (supra) all underlined the importance of service of an originating process and held particularly by Lord Greene M.R. in CRAIG v. KANSSEN (supra) that:-
?it is beyond question that failure to serve process, where service is required, is a
failure which goes to the root of our conception of the procedure in litigation.
?In the instant case the notice of appeal does not have endorsed thereon address for service of each of the 3rd – 36th respondents. It offends Order 2 Rule 3. Accordingly, therefore I hereby invoke the sanction for this incompetent process contained in Order 2 Rule 3 of the Rules of this court, and the said notice of appeal filed on 26th July, 2015 is hereby struck out. The filing of this notice of appeal in flagrant disobedience of Order 2 Rule 3 and Order 6 Rule 2(1) was intended not to promote the tenets and purport of sections 36(1) and 285(7) of the 1999 Constitution, as amended: that in the determination of an election appeal the parties shall be entitled to a fair hearing within a reasonable time by the court or tribunal. Section 285 (7) of the same constitution, in particular, makes it imperative that an appeal from a decision of an election tribunal shall be heard and disposed of within 60 days from the date of the delivery of the decision of the tribunal.
?I notice from the bailiffs report of service in the records of the court that this incompetent notice of appeal was
dumped on the Protocol Officer of APC, the 37th Respondent, on 28th July, 2015 as a purported service of the same on the 3rd, 4th, 6th ? 12th, 15th ? 24th, 26th ? 29th, and 32nd ? 36th respondents; whereas there was no order for such a substituted service. The purported service is incompetent and of no effect.
?Finally, on this ground of objection I hereby re-state the words of Ngwuta, JSC in P.D.P v. OKOROCHA (2012) LPELR ? 7822 (SC) that the court hearing a matter, whether as a court of first instance or an appellate court, has a duty to ensure that the processes by which a party seeks relief before it comply with the relevant provisions of the applicable law.
A court of Record must jealously guard the judicial process from being ridiculed and for the purpose of achieving a just, equitable and expeditious dispensation of justice. See DINGYADI v. INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154.
The notice of appeal filed on 26th July, 2015, being incompetent, is hereby struck out. There is no further use retaining the incompetent appeal on the cause list.
?The third ground of the preliminary objection of the 1st and 37th respondents is not
in a preliminary objection so called. It attacks only ground 13 in the notice of the incompetent notice of appeal. As it does not seek to uproot the appeal or terminate the appeal, but only one out of the several grounds of grounds of appeal it cannot be admitted as a preliminary objection. The sole purpose of preliminary objection is to terminate the appeal in its entirety, usually on grounds of incompetence. An attack on one ground of appeal leaving several grounds that can sustain the appeal does not come within the realm of preliminary objection. See MUHAMMED v. MILITARY ADMINISTRATOR, PLATEAU STATE (2001) 16 NWLR (Pt. 740) 524; NDIC v. ORANU (2001) 18 NWLR (Pt. 744) 183. What the 1st and 37th respondents should have done in the circumstance is coming by a motion to challenge this ground 13 of the grounds of appeal. The preliminary objection founded on this ground (iii) of the objection is hereby struck out.
?Ordinarily, the striking out of the appeal should have been the convenient point to end this decision. This Court is not the final court, but an intermediate court in this matter. In the circumstance I am enjoined to consider the merits of the appeal
and offer my comments or decision on them, in case I was wrong in striking out the appeal in limine as I have done.
?The crux of the matter in this appeal is that the appellants’ counsel’s application for issuance of pre-hearing notice to be issued by the Tribunal Secretary in the Petition No. EPT/IM/GOV/03/2015 was received by the said Secretary on 23rd June, 2015. It came by way of a letter. There was no assessment for its filing and no filing fee therefor was paid until 3rd July, 2015. Meanwhile, the Secretary of the Tribunal had acted on the said application, which came by way of a letter, and issued Hearing Notice for Pre-Hearing Session. A fee of N300.00 was paid for this process on 23rd June, 2015. The appellants, as petitioners, on the said 23rd June, 2015 had issued out both Pre-Hearing Information Sheet and Answers to the Questions in the Pre-Hearing Information Sheet. The 1st and 37th Respondents, who were the Objectors at the Tribunal below, had on 26th June, 2015 filed their Answers to the Questions contained in the Pre-Hearing Information Sheet. They had thus taken steps in the Pre-Hearing Session. The 5th, 13th, 14th, 25th, 30th and 31st
respondents, also taking steps in the Pre-Hearing Session, had also filed respectively Answers to the Questions in the Pre-Hearing Information Sheet.
The Tribunal below, upon the Preliminary Objection of the 1st & 37th respondents, held that the Petitioners/appellants, by failing to comply with Paragraph 18(1) to the First Schedule to the Electoral Act, 2010, as amended, which enjoins them “to apply for the Issuance of Pre-Hearing Notice as in Form TF 008” within 7 days after the close of pleadings, dismissed the petition dismissed in accordance with Paragraph 18(4) of the First Schedule to the Electoral Act, 2010, as amended.
?In the Appellants’ Brief filed on 31st July, 2015, which was adopted at the hearing of the appeal, the Appellants formulated a total of 7 issues for the determination of the appeal. The core issues in the appeal, in my view, are:
1. Whether the letter to the Tribunal Secretary dated 22nd June, 2015 which was received by the said Secretary on the 23rd June, 2015 and on which said letter the Tribunal Secretary acted to promptly on 23rd June, 2015.Issued Hearing Notice for the pre-Hearing Session was not sufficient under paragraph 18(1) of
the First Schedule to the Electoral Act, 2010, as amended?
2. Whether the 1st & 37th Respondents, having taken steps in the Pre-Hearing Session by filing Answers to the Questions contained in the Pre-Hearing Information Sheet, are not stopped, by operation of paragraph 53 (2) of the said First Schedule of the Electoral Act, 2010, as amended, from raising the objection resulting in the dismissal of the petition.
?Chief Ahamba, SAN, relying so much on ABUBAKAR v. NASAMU (No. 2) (2012) 17 NWLR (Pt. 1330) 523 and MGBA v. P.D.P. (2013) 523 and UGBA v. PDP (2013) All FWLR (Pt. 686) 540 at 548 submits that Paragraphs 18(1) of the First Schedule to the Electoral Act, 2010, as amended, is sufficiently complied with once the Petitioner issues a letter to the Tribunal Secretary urging the latter to issue Hearing Notice for Pre-Hearing Session. The Senior Counsel further submits that between the Petitioner and the Tribunal the preliminary steps taken by the Petitioner to nudge the Secretary to issue Hearing Notice for the commencement of the Pre-Hearing Session is purely administrative. On the other hand, the 1st and 37th respondents vehemently posit that such steps, as
the application of the Petitioner to the Tribunal Secretary to kick start the Hearing Notice for the Pre-Hearing Session, are not administrative but purely judicial and the petitioner must pay the filing fee for the process by which he applies to the Tribunal Secretary to issue Hearing Notice for the Pre-Hearing Session.
?There is nothing in Paragraph 18(1) of the First Schedule vesting any adjudicative or quasi-judicial powers on the Tribunal Secretary when he is presented an application by the Petitioner for the Issuance of Hearing Notice for Pre-Hearing Session. The Secretary in this regard is not required to hear the parties in the petition, upon the Petitioner’s application for issuance of Hearing Notice before he acts on the application and issues the Hearing Notice. The function is purely administrative. The Secretary of the Tribunal, an administrative officer, plays no adjudicatory role in the determination of the petition. The duty imposed by Paragraph 18 (1) of the First Schedule on the Secretary, when nudged by the Petitioner to issue Hearing Notice at the close of the pleadings for Pre-Hearing Session, is merely to issue the notices. The purpose of
Pre-Hearing Notice, as held in SA’EED v. YAKOWA (2013) All FWLR (Pt. 692) 1650 at 1686, is to inform the parties of the impending hearing in order that they may attend the hearing.
?Paragraph 18(1) of the First Schedule provides no special mode by which a petitioner “shall apply for the issuance of Pre-Hearing Notice as in Form TF 008″ to the Secretary of the Tribunal. In absence of any special mode in Paragraphs 18(1) of the First Schedule to the Electoral Act, 2010 as amended, the Petitioner’s letter to the Tribunal Secretary to issue Pre-Hearing Notice will suffice. In ABUBAKAR v. NASAMU (supra) the Petitioner, after the close of pleadings, issued a letter dated 14th June, 2011 to the Secretary of the Election Tribunal wherein he applied that Pre-Hearing Notice be issued. It was held that the letter, like the letter in the instant appeal at Page 257 of the Record, constitutes, in the words of Tabai JSC, a sufficient compliance with the requirement of the provisions” in Paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended. The Supreme Court followed and applied this dictum subsequently in UGBA v. PDP (Supra). At Pages 492-493 of the
Report Onnoghen, JSC, affirming that the act or matter being purely administrative, and not judicial or quasi-judicial, held that “the application required under the said Paragraph 18(1) can be made by either letter or ex-parte motion or on notice.”
On this note, I resolve in favour of the appellants that they complied with Paragraph 18(1) of the 1st schedule to the Electoral Act, 2010, as amended, when they applied, as they did at Page 257 of the Record, by a letter to the Tribunal Secretary requesting the latter to issue hearing notice for the pre-hearing session of their petition, pleadings having closed on 20th June, 2015.
It is apparent that the Tribunal below failed to consider the provision of Paragraphs 53(2) of the said 1st Schedule to the Electoral Act, 2010 in its decision the subject of this appeal. It provides
53. (2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the fact.
?The appellants’ counsel, relying on
the Supreme Court decision in SA’EED v. YAKOWA (Supra) and Paragraph 53(2) of the said 1st Schedule submits that even if there was non-compliance by the Petitioners/Appellants with Paragraph 18(1) of the 1st Schedule the 1st and 37th Respondents could not be heard to ask for dismissal of the petition since they had waived their right to do so by their participatory activities, and that if they did ask the Tribunal below was enjoined to refuse the application by the operation of Paragraph 53(2) of the 1st Schedule. In response, it is submitted for the 1st & 37th Respondents that the 1st & 37th Respondents only became aware of the fact that the Petitioners\Appellants did not pay for the filing of their application to the Tribunal Secretary to issue Hearing Notice for the pre-hearing session until 5th July, 2015. I have read the affidavit in support of the motion, the ruling on which is the subject of this appeal, particularly Paragraphs 6 and 7 of the affidavit. It is my firm and candid view that the 1st & 37th Respondents did not state the date they first became aware of the defect in the letter at Page 257 of the Record, that is: the
Petitioners/Appellants letter or application for hearing notice to issue. They seem to have suppressed this material fact. In any case, this issue is of no moment now. I have since held that application for issuance of Hearing Notice under Paragraph 18(1) of the 1st Schedule is purely administrative and the letter dated 22nd June, 2015, but received by the Tribunal Secretary on 23rd June, 2015, sufficiently complies with the requirements of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended.
The Records show that the Tribunal Secretary issued Hearing Notice for the pre-Hearing Session on 23rd June, 2015. The filing fee was paid for this process. The 1st & 37th Respondents took fresh steps to file, on 26th June, 2015, their answers to the Questions contained in the pre-Hearing Information Sheet. By their active participatory activities the 1st & 37th Respondents cannot say that they suffered any prejudice or embarrassment. The purpose of pre-Hearing Notice has thus been achieved. In SA’EED v. YAKOWA (supra) at page 1686 per Ngwuta, JSC the purpose of pre-Hearing Notice is said ?
?to inform the parties of the impending hearing
and to ensure (their) attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice, a party who has taken part in the proceedings cannot be heard to argue that the rule has not been complied with, more so when there is no allegation of miscarriage of justice from the non-compliance. IPINLAIYE II v. OLUKOTUN (1996) 6 SCNJ 74 at 88; (1996) 6 NWLR (Pt 453) 143; AKHIWU v. PRINCIPAL LOTTERIES OFFICER MIDWEST (1972) 1 All NLR (Pt. 1) 229 at 238; OKWECHIME v. PHILIP IGBINADOLOR (1964) NMLR 132.
Equity follows the law, and takes as done that which ought to be done. Therefore, once the Tribunal Secretary issues Hearing Notice for the pre-Hearing season within the prescribed period after the close of pleadings and the parties had taken steps to participate in the pre-hearing session they are estopped from complaining that the petition has been abandoned.
?Reading paragraphs 18(1) and 53(2) of the 1st Schedule to the Electoral Act, 2010 together makes it clear that failure to formally apply for notice of pre-hearing session to issue is merely procedural. And being procedural the party who
has the right to timeously question its non-compliance can waive strict compliance therewith. In ADAMS v. UMAR (2009) 5 NWLR (Pt. 1133) 41 it was held:
Where a wrong procedure was adopted in commencing a suit and no objection to the procedure was timeously raised by the opposing party, the proceedings based on such wrong procedure is valid. Non-compliance with the Rules of Court, as against statutory provisions, may not necessarily result in the judgment given in the case being set aside. Ordinarily, once steps are taken in the proceeding by a party complaining about the breach of the Rules of Court, he is deemed to have waived the breach.
?Thus, as I stated in IHIABE v. ZAKARI & ORS (2012) 12 NWLR (Pt. 1315) 517, in almost similar circumstances as the instant case, equity only aids the vigilant and not the indolent.
In SA’EED v. YAKOWA (Supra) the Petitioner did not strictly comply with Paragraph 18(1) of the 1st Schedule to this Electoral Act, 2010, as amended. The Respondent took steps to file processes for the pre-Hearing Session and he was held, by the operation of with Paragraph 18(1) 53 of the 1st Schedule, to have waived the irregularity by his filing
answer sheet for the pre-hearing session. The instant case is almost on all fours with SA’EED v. YAKOWA case (Supra). Accordingly, I resolve the issue in favour of the appellants. My decision on the merits in the appeal would have been one setting aside, in its entirety, the decision appealed, if I had not earlier struck out the appeal for being incompetent.
THE CROSS-APPEAL
The issue in the cross-appeal is: Whether the trial Tribunal ought to have pronounced a decision, one way or the order, on the Cross-Appellants’ prayer contending that the Petition was an abuse of court process and in consequence hold that the petition was liable or not liable for dismissal in their Ruling delivered on 22nd July, 2015.
The sole ground of the cross-appeal contained in the Additional Record transmitted on 6th August, 2015 complains that the trial Tribunal “omitted to give a decision on the additional prayer on which the 1st & 37th Respondents predicated their motion for dismissal of the petition on the ground that same was an abuse of court process.”
?It is trite that a competent ground of appeal must arise from the judgment being challenged. In SARAKI v. KOTOYE (1992) 11-12
SCNJ 26; (1992) NWLR (Pt. 264) 156 Karibi-Whyte, JSC stated, of what a ground of appeal is, thus -Grounds of appeal are not formulated in nubibus. They must be firma terra, namely arise from the judgment. However, the ground of appeal, based either on points of critical constitutional importance or general public interest, must be connected with a controversy between the parties. This is the precondition for vesting of judicial powers of the Constitution in the Courts.
The settled principle of law, as regards appeals, is that the ground of appeal against a decision must relate to the decision appealed and should constitute a challenge to the ratio of the decision: SARAKI v. KOTOYE (Supra). The ground of appeal is the reason why the decision appealed is considered by the aggrieved party to be wrong. The purpose of the ground of appeal is, therefore, to isolate and accentuate for attack the basis of the reasoning of the decision being challenged: See EJOWHOMY v. EDOH-ETER LTD (1986) 5 NWLR (Pt. 39) 1; AQUA LTD v. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622; SARAKI v. KOTOYE (Supra).
?I have, against the backdrop of the above principles, strenuously looked
at the sole ground of appeal and the sole issue formulated therefrom in this cross-appeal viz-a-viz the decision being challenged. I found, unfortunately, that the complaint that the trial Tribunal omitted to consider and decide the issue of abuse of court process is most frivolous and vexatious. It was recklessly made. In its decision, the portion particularly at pages 610-613 of the Record, the Tribunal did extensively consider the issue of abuse of court process, and came to the conclusion that the issue of abuse of court process raised by the 1st & 37th Respondents was clearly unfounded. The issue was dismissed, and there is no appeal against that decision. The effect of a decision of court not appealed against is that the said decision is deemed accepted and remains forever binding on the parties. See AKERE v. GOVERNOR, OYO STATE (2012) 50.2 NSCQR 345 at 394.
The sole ground of appeal in the cross-appeal and the sole issue formulated therefrom are based on non-existent or false premise. They are each incompetent and liable to be struck out. See ALAKIJA v. ABDULAI (1998) 8 NWLR (Pt. 552) 1 at 16-17; IKEM v. EZIANYA (2002) 4 NWLR (Pt. 757) 245 at 261;
SPLINTERS (NIG) LTD v. OASIS FINANCE LTD (2013) 18 NWLR (Pt. 1385) 188 at 213. Consequently, therefore, the cross-appeal, premised on the incompetent sole ground of appeal from which a sole issue for determination has been formulated being incompetent is hereby struck out.
I had earlier struck out the appeal filed on 26th July, 2015 for being incompetent. The parties shall bear their respective costs.
JIMI OLUKAYODE BADA, J.C.A.: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
HAMMA AKAWU BARKA, J.C.A.: I agree.
APPEARANCES
Chief Mike A. Ahamba, SAN, KSC
leading Chief Ndukwe Nwawuchi
SAN, KSC with Chief (Dr.) A. N.
Aguwa, L. I. Nwaogwugwu, Esq.;
M.I. Ogwuegbu, Esq.; Chief S. U.
Onyike, P. N. Anosike, Esq.; Dr.
Ken Uzoechi; A. S. Ogujiofor, Esq.;
Charles Akwete, Esq.; Chief J. O. Eze;
E.N. Ichie, Esq.; C. C. Okoroafor, For Appellants
Esq.; N. M. Aladum, Mrs.; D. N.
Onyekwere, Esq.; K. O. Ahamba,
Esq.; K. U. Alisigwe, Esq.; V. M.
Oguayo, Esq.; B. C. Nwaturuocha,
Esq.; D. O. Nosike, Esq.; J. A.
Okereke, Mrs.; C. E. Bright, Miss;
Paul Ezeji, Esq. for Appellants/Cross-Respondents.
A. J. Owonikoko, SAN with M. O.
Nlemedim, Esq.; Nwala C. Oracle,
Esq.; C. N. Chilaka Igidi, Esq.;
Obinna Amagwula, Esq.; Ifeanyi
Okechukwu, Esq.; C.O.C Emeka
Izima, Esq.; Nelson Ezerioha, Esq.;
Emeka Okoro, Esq.; Nkata
Nwankata, Esq.; For Respondents
for 1st & 37th Respondents/Cross-Appellants.
D.O. Agbo, Esq. for 2nd Respondent
S. N. Nnadi, Esq. for 5th, 13th and 14th Respondents
G. C. Opara, Esq. for 11th and 33rd Respondents
E. I. Nwugha, Esq. for 25th, 30th and 31st Respondents
40
Appearances
Chief Mike A. Ahamba, SAN, KSC leading Chief Ndukwe Nwawuchi SAN, KSC with Chief (Dr.) A. N. Aguwa, L. I. Nwaogwugwu, Esq.; M.I. Ogwuegbu, Esq.; Chief S. U. Onyike, P. N. Anosike, Esq.; Dr. Ken Uzoechi; A. S. Ogujiofor, Esq.; Charles Akwete, Esq.; Chief J. O. Eze; E.N. Ichie, Esq.; C. C. Okoroafor, Esq.; N. M. Aladum, Mrs.; D. N. Onyekwere, Esq.; K. O. Ahamba, Esq.; K. U. Alisigwe, Esq.; V. M. Oguayo, Esq.; B. C. Nwaturuocha, Esq.; D. O. Nosike, Esq.; J. A. Okereke, Mrs.; C. E. Bright, Miss; Paul Ezeji, Esq. for Appellants/Cross-Respondents.For Appellant
AND
A. J. Owonikoko, SAN with M. O. Nlemedim, Esq.; Nwala C. Oracle, Esq.; C. N. Chilaka Igidi, Esq.; Obinna Amagwula, Esq.; Ifeanyi Okechukwu, Esq.; C.O.C Emeka Izima, Esq.; Nelson Ezerioha, Esq.; Emeka Okoro, Esq.; Nkata Nwankata, Esq.; for 1st & 37th Respondents/Cross-Appellants.
D.O. Agbo, Esq. for 2nd Respondent
S. N. Nnadi, Esq. for 5th, 13th and 14th Respondents
G. C. Opara, Esq. for 11th and 33rd Respondents
E. I. Nwugha, Esq. for 25th, 30th and 31st RespondentsFor Respondent
