SENATOR PETER NWAOBOSHI v. HON. NED MUNIR NWOKO & ORS
(2019)LCN/13336(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/A/318/2019
RATIO
PRELIMINARY OBJECTION: NATURE AND PURPOSE
The Appellant cited the case of NNPC VS. FAMFA OIL LTD (2012) 17 NWLR (PT. 1328) 148; ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252; JULIUS BERGER NIGERIA LIMITED PLC & ANOR VS. MRS PHILOMENA UGO (2015) LPELR – 24408 (CA)
I am inclined to agree with the Appellant in this regard as this principle of law was upheld by the Apex Court in the recent case of BANK OF INDUSTRY LTD VS. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR 43812 (SC) where in explaining the purpose and effect of a preliminary objection Rhodes-Vivour, JSC held:
“This Preliminary Objection is against the hearing of this suit. In ISAH V. INEC & 3 ORS (2014) 1 ? 2 SC (Pt IV) 101 I explained Preliminary Objections and when to file them and when not to file them. I said that: ‘A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice. See DAKOLO & 2 ORS V. DAKOLO & 3 ORS (2011) 6 – 7 SC (PT.III) P.104; OBATOYINBO V. OSHATOBA (1996) 5 NWLR (PT.450) P.531”.PER MOHAMMED BABA IDRIS, J.C.A.
PRELIMINARY OBJECTIONS ARE NOT FOR CHALLENGING THE COMPTENECE OF SOME GROUNDS OF APPEAL
Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See ODUNUKWE VS OFOMATA (2010) 18 NWLR (PT. 1225) 404 @ 423 C – F; NDIGWE VS NWUDE (1999) 11 NWLR (PT,626) 314.”PER MOHAMMED BABA IDRIS, J.C.A.
APPEAL: GROUNDS OF APPEAL: FROM WHERE ARE THEY TO BE FORMULATED?
The Apex Court in MERCANTILE BANK OF NIGERIA PLC & ANOR VS. NWOBODO (2005) LPELR-1860(SC) held:
“grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. This is indeed a pre-condition if for the vesting of judicial powers under the Constitution in the Courts.”PER MOHAMMED BABA IDRIS, J.C.A.
FRESH ISSUE: WHAT IS A FRESH ISSUE
It is instructive to state what a fresh issue is? The simple and short answer to this question was answered in the case of FBN PLC VS. AKPARABONG COMMUNITY BANK LTD & ANOR (2005) LPELR 7496 (CA) where the Court held that:
“There are plethora of cases where the raising of fresh issue on appeal has been defined, examined and considered so as to leave no one in doubt as for what it means. For instance, in KANO ILE PRINTERS PLC. V. GLOEDE & HOFF NIG. LTD. (2002) 2 NWLR (PT, 751) 420 AT 448, this Court stated that:-
A fresh issue on appeal is an issue which was not canvassed at the trial and pronounced upon by the trial Court.”PER MOHAMMED BABA IDRIS, J.C.A.
PRE-ELECTION MATTERS: PERIOD WITHIN WHICH PRE-ELECTION MATTERS MUST BE FILED
This can be gleaned from Section 285 (9) which put the time for filing a pre-election no later than 14 days from the date the event occurred.PER MOHAMMED BABA IDRIS, J.C.A.
RESPONDENT’S NOTICE: HOW TO FILE A RESPONDENT’S NOTICE
As it relates to filing of a Respondent’s Notice, the Supreme Court in UMAR VS. WHITE GOLD GINNERY NIG. LTD (2007) ALL FWLR (PT. 358) 1096 relying on Order 3, Rule 14 (2) and 4 (b) of the Court of Appeal Rules 1981 (as amended)which is exactly the same wording as Order 9 Rule 4(b) of the Court of Appeal Rules, 2016, held:
“By virtue of Order 3, Rule 14(2) and 4 (b) of the Court of Appeal Rules, a respondent who desires to contend on appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court must give notice to that effect specifying the grounds of that contention, Any notice given by a respondent under this rule (in this order referred to as a “respondent’s notice) must be served on the appellant and on all the parties to the proceedings in the Court below who are directly affected by the contentions of the respondent, and it must be served –
a. In the case of appeal against an interlocutory order, within fifteen days and
b. in any other case within thirty days, after the service of the notice of appeal on the respondent. In the instant case, there is nothing in the record to indicate that an application for extension of time within which to file the respondent’s notice was sought or obtained. The respondent’s notice is therefore incompetent and was rightly struck out.”
This line of reasoning was also adopted in ELIZABETH MABAMIJE VS. HANS WOLFGANG OTTO (2016) LPELR 26058 (SC) by the same Supreme Court. In the instant case, the Notice of Appeal was served on the 12th of April 2019, 1st Respondent filed his Respondents Notice on the 13th of May, 2019, a clear one day out of time thereby necessitating the leave of Court to ensure validity. Definitely the Respondent’s Notice was filed out of time and thereby rendering same incompetent.PER MOHAMMED BABA IDRIS, J.C.A.
STATUTE BAR: WHETHER THE FILING OF A SUIT CAN REVIVE ANOTHER ONE
In view of the above uncontested facts, can this suit be held to be statute barred. The Answer to the above question is readily available in the case of ADDAX PET. DEV; (NIG) LTD V EMEF INTERNATIONAL OPERATIONS (2012) ALL FWLR PART 621, 1585 wherein it was held that the earlier suit filed revived the re-filing and took effect from the date the action was filed in the high Court. Applying the above position of law to the instant suit, the filing of the present suit on 11/12/18 has revived the earlier suit filed before the High Court of the FCT…’PER MOHAMMED BABA IDRIS, J.C.A.
CAUSE OF ACTION: HOW TO DETERMINE PROPER CAUSE OF ACTION
The Courts have set out the proper procedure to be followed when determining the cause of action, and a case on point is ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR ? 55 (SC) where the Apex Court per Mukhtar, JSC held that:
“It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim for it is by examining them that a Court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the Court. After determining the cause of action then by the very averments, the Court can discern the time that a cause of action arose.”PER MOHAMMED BABA IDRIS, J.C.A.
JURISDICTION: IT IS FUNDAMENTAL IN NATURE
Coming to this conclusion, I would like to categorically state that the issue of Jurisdiction is a fundamental one that can be raised at any time even at the Supreme Court for the first time. This has been decided by the Supreme Court in a plethora of cases including the recent case of NIGERIA PORTS AUTHORITY VS. AMINU IBRAHIM AND COMPANY & ANOR (2018) LPELR ? 44464 (SC) per Sanusi, JSC where it was held that:
“As rightly pointed out, the parties in this appeal did not raise the issue of jurisdiction in the two Courts below. At any rate and notwithstanding the fact that issue of jurisdiction was never raised in the two Courts below, in view of its fundamental nature and also since the law is trite that issue of jurisdiction can be raised by any of the parties at any stage of the proceedings even at the Supreme Court, such issue must first of all be addressed by me. See FRANCIS DURWODE V STATE (2000) 15 NWLR (PT 691)467.”PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
SENATOR PETER NWAOBOSHI Appellant(s)
AND
1. HON. NED MUNIR NWOKO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal by Notices of Appeal dated and filed on the 4th day of April 2019, 11th day of April 2019, and 12th day of April 2019 appealed against the decision/judgment of the Federal High Court, Abuja Judicial Division, in Suit No. FHC/ABJ/CS/1524/2018 delivered on the 3rd day of April, 2019 by Honourable Justice A. R. Mohammed wherein the trial Judge upheld the reliefs sort by the Plaintiff (1st Respondent).
The facts of the case leading to this Appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect the 1st Respondent commenced a suit by Originating Summons on the 11th of December 2018 where he contended that he was the lawful candidate who won the primary election which took place on the 2nd of October 2018. The 1st Respondent had earlier filed Suit No: FCT/HC/CV/3086/18 before the High Court of the Federal Capital Territory which was withdrawn by the 1st Respondent and struck out on the 10th of December 2018. In the case before the Federal High Court the 1st Respondent who filed with a Supporting
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Affidavit and Exhibits A, B, C, C1, E, E1, F1 ? F4, told the Court that he applied for a nomination form and was provided one by the National Working Committee of the party and was cleared to contest in the primary election. That however after the Primary election and counting of votes, the Appellant assisted by hired thugs and agents caused a problem which lead to a stampede and the results were written with votes that were not casted in favour of the Appellant. This was done to discredit the result which was produced from the said primary election. The 1st Respondent also contended that he produced two different result sheets produced by the 3rd Respondent, which have different serial numbers and different entries in them.
?In his Originating Summons at the lower Court the 1st Respondent raised three (3) questions for the Court’s determination thus:
1. Whether the 1st Defendant, Independent National Electoral Commission (INEC) who supervised and monitored the Primary Election of the 2nd Defendant and knows that the Plaintiff won the majority of valid and lawful votes cast at the Primary Election of the 2nd Defendant can lawfully accept,
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display and/or publish the name of the 3rd Defendant as the candidate of the 2nd Defendant for the Delta North Senatorial District Election, when the 3rd Defendant lost the election.
2. Whether by the mandatory provisions of the Electoral Act 2010 (As Amended), the 1st Defendant (INEC) is not bound to publish only the name of the plaintiff who won the Primary Election of the 2nd Defendant in respect of the Delta North Senatorial District in respect of the 2019 General Election.
3. Whether the continued display of the name of the 3rd Defendant by the 1st Defendant as the candidate of the 2nd Defendant for the Delta North Senatorial District in respect of the 2019 General Elections instead of the name of the Plaintiff does not constitute a violation of the constitution of the Federal Republic of Nigeria, the Electoral Act, the Guidelines of the 2nd Defendant and the VESTED RIGHT of the plaintiff as the valid candidate for the said election.
Consequent up
