SHEHU v. ABUBAKAR & ORS
(2020)LCN/15359(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, September 25, 2020
CA/YL/112/2018
RATIO
APPEAL: ESSENCE OF A PRELIMINARY OBJECTION
A preliminary objection is only filed for the sole purpose of informing the Court that the appeal is incompetent or fundamentally defective. If it succeeds, the appeal should no longer be heard. PER JAMES SHEHU ABIRIYI, J.C.A.
APPEAL: WHETHER ONE GROUND OF APPEAL CAN SUSTAIN AN APPEAL
One ground of appeal can sustain an appeal. See Shittu V. P.A.N. Ltd (2018) 15 NWLR (Pt. 1642) 195 at 206 and UWAK V. EKPENYONG (2019) 7 NWLR (Pt. 1670) 67 at 77. PER JAMES SHEHU ABIRIYI, J.C.A.
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
YERIMA WAKILI USMAN SHEHU APPELANT(S)
And
1. MAHMUD ABUBAKAR 2. THE EXECUTIVE GOVERNOR OF ADAMAWA STATE 3. MUBI EMIRATE COUNCIL 4. ATTORNEY GENERAL OF ADAMAWA STATE RESPONDENT(S)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 13th July, 2018 in the High Court of Adamawa State holden at Yola.
In the High Court (the Court below), the 1st Respondent as Plaintiff took out an originating summons against the Appellant, 2nd Respondent, 3rd and 4th Respondents as defendants.
The 1st Respondent as plaintiff sought for the determination of the following questions:
1) Whether by the combined effect of the unambiguous provisions of Section 7 (2)(a),(b),(c)(d) and (e) of the Adamawa State Creation of District Law, 1992 (as amended), a candidate not recommended by the Emirate Council and same sent to the Governor for his approval can attract any valid approval by the Governor?
2) Whether taking into cognizance the provisions aforestated, the Governor of Adamawa State can legally approve the name of the 3rd Defendant for appointment into the office of the District Head of Jalingo-Maiha District, Maiha Local Government Area of Adamawa State, when he was not the person recommended by the 2nd Defendant and forwarded to him for approval?
3) Whether taking into cognizance the provision of Section 7(2)(e) of the Adamawa State Creation of District Law, 1992 (as amended, it is not ultra vires for the Governor to approve the name of the 3rd defendant for appointment into the office of the District Head of Jalingo-Maiha District, Maiha Local Government Area of Adamawa State when he was not the person recommended by the 2nd Defendant and forwarded to him for approval.
Upon the determination of the above questions in his favour, the 1st Respondent sought for the following reliefs:
1. AN ORDER DECLARING the approval of the 3rd defendant by the Governor of Adamawa State as the District head of Jalingo-Maiha District, Maiha Local Government Area who was not the person recommended by the 2nd Defendant as wrongful, illegal, null and avoid;
2. AN ORDER DECLARING the plaintiff whose name was forwarded to the Governor of Adamawa State for approval by the 2nd Defendant as the proper person to be approved for appointment as the District Head of Jalingo-Maiha District;
3. AN ORDER DEEMING the Plaintiff who was the person recommended by the 2nd Defendant for approval by the Governor of Adamawa State as the person approved to be the District Head of Jalingo-Maiha District by the Governor, OR IN THE ALTERNATIVE;
4. AN ORDER DIRECTING the Governor of Adamawa State to approve the plaintiff as the person for appointment as the District Head of Jalingo-Maiha District, Maiha Local Government Area;
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from recognizing/accepting or taking any step, including the turbaning of the 3rd Defendant, in furtherance of the approval of the Executive Governor of Adamawa State contained in the letter dated the 7th day of August, 2017;
6. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd Defendant from parading himself as the District Head of Jalingo-Maiha District, Maiha Local Government Area of Adamawa State.
7. AND for such Order or further Orders as this Honourable Court may deem fit and necessary to make in the circumstance of this matter.
The case of the 1st Respondent as can be made out from the affidavit in support of the originating summons as well as the further affidavit is as follows: The 1st Respondent was one of the people who applied to be appointed District Head of Jalingo-Maiha, Maiha Local Government Area of Adamawa State. He (1st Respondent) was recommended as the successful candidate for appointment as the District Head of Jalingo-Maiha District to the Governor for appointment. Instead of giving approval as recommended, the Governor appointed the Appellant as District Head of Jalingo-Maiha.
That there was no error in his recommendation. The recommendation was never withdrawn. The Appellant was not subsequently recommended for appointment.
He (1st Respondent) was the only candidate recommended by the 3rd Respondent for appointment as the District Head of Jalingo-Maiha.
The 2nd, 3rd and 4th Respondents did not defend the suit. Only the appellant did.
The defence of the Appellant as revealed from the counter affidavit is as follows: According to the Appellant, he was victorious in the election conducted by the 3rd Respondent with a simple majority. After the election, steps were taken to recommend the 1st Respondent who scored less votes. So some village heads who voted in the election complained to the Governor.
The erroneous recommendation of the 1st Respondent was withdrawn as a result of the complaint by some of the village heads. The Appellant was then recommended for appointment and was so appointed as District Head of Jalingo-Maiha of Maiha Local Government Area of Adamawa State.
The Court below considered the affidavit evidence and addresses of counsel and entered judgment in favour of the 1st Respondent.
The Appellant immediately approached this Court by a notice of appeal dated and filed 31st July, 2018. The notice of appeal contains five grounds of appeal.
From the five grounds of appeal, the Appellant in the Appellant’s Brief of argument filed on 13th November, 2018 and deemed duly filed on 21st November, 2018 presented the following three issues for determination:
1. Whether the Trial Court was right when it assumed jurisdiction over the matter.
2. Whether the Trial Court was right when it entered Judgment in favour of the Plaintiff and granted the reliefs sought.
3. Whether the Trial Court was right when it held that the 3rd Defendant had failed to establish that the Plaintiff was recommended in error.
The 1st Respondent in an amended brief of argument filed on 19th February, 2019 and deemed duly filed on 17th September, 2019 submitted the following two issues for determination:
1. Whether having been the candidate elected and recommended by the Mubi Emirate Council to the Governor of Adamawa State for approval, the 1st Respondent can be said to qualify as an aggrieved person to bring to bear the effect of Section 8(1) and (2) of the Adamawa State District Creation Law, 1992 (as amended)? (Distilled from ground 2 of the notice of appeal).
2. Whether taking into cognizance the facts and circumstances of the case, the 1st Respondent made out a case to warrant judgment being entered in his favour by the lower Court? (Distilled from grounds 1, 3, 4 and 5).
The 1st Respondent filed a notice of preliminary objection which was argued in the amended brief of the 1st Respondent.
Arguing the appeal, learned counsel for the Appellant referred the Court to Section 8(1) and (2) of the Adamawa State Creation of District Law 1992 (as amended). He submitted that the import of the provision is that before an aggrieved party in the election or selection can approach the Court for redress, the procedure laid down in the provision must be adhered to as an internal mechanism. This, the 1st Respondent did not do. The Court was referred to AKINTOKUN V. L.P.D.C. (2014) LPELR-22941 SC, ARIBISALA & ANOR V. OGUNYEMI & ORS (2005) LPELR 549 SCAND ANYANWU V. UNIVERSITY OF JOS (2014) LPELR-22556 CA.
It was submitted that the 1st Respondent having failed to exhaust the remedies available thereby robbed the Court below of the jurisdiction to entertain the matter.
On issue 2, learned counsel for the Appellant submitted, that the law which prescribes the procedure for assumption of the position of District Head was not followed in the recommendation of the 1st Respondent by the 3rd Respondent to the 2nd Respondent. The Court was referred to Section 7(1)(a), (b) ,(c) and (d) and 7(2) (a) – (f) of the same Law.
It was submitted that the law gives the 2nd Respondent the discretion to appoint that was why he appointed the Appellant who scored the highest votes at the election instead of appointing the 1st Respondent who was recommended by the 3rd Respondent for appointment.
The Adamawa State Creation of District Law 1992 (as amended), it was submitted, prescribes a mode of selection which is by election. For this reason, the person with the highest votes should be recommended and no other person.
It was submitted that Section 7(2)(e) of the Law cannot be read in isolation of the provisions of subsection, Section 2(a), (b) and (c) which all specify election as the mode of selection.
Learned counsel for the Appellant adopted his submissions under issue 2 as his submissions under issue 3.
He further submitted that Exhibit A annexed to the Appellant’s counter affidavit shows that the 1st Respondent was recommended in error.
It was submitted that inspite of the unchallenged evidence before the Court below, it nevertheless held that the Appellant failed to establish that the 1st Respondent was recommended by the 3rd Respondent to the 2nd Respondent in error.
Arguing the 1st Respondent’s issue 1, learned counsel for the 1st Respondent contended that after the deliberation by the 3rd Respondent, the 1st Respondent emerged victorious and he was recommended by the 3rd Respondent to the 2nd Respondent for approval in line with Section 7(2) of the enabling law. That instead of giving approval, the 2nd Respondent proceeded to forward the name of the Appellant as the person approved. That it was this act of the 2nd Respondent that ignited the suit before the Court below seeking the nullification of the approval for being contrary to Section 7(2) of the Law.
It was submitted that an aggrieved person within the purview of Section 8(1) and (2) of the Law is one who sought to be selected or elected by the Emirate Council but failed. The claim of the 1st Respondent, it was further argued was not related to the selection exercise but the approval of the name of the Appellant by the Governor. The Section, it was submitted, does not envisage a petition against the action of the Governor in the event of his action or inaction in the exercise of his power. It was the singular action of the Governor, maintained learned counsel for the 1st Respondent not the election or selection by the 3rd Respondent that led to the action. The court was referred to the judgment of the Court below at page 245-246.
The Court, it was submitted, should not read Section 8(1) of the Law in isolation. By Section 8(2) of the Law, it was submitted, upon a successful petition, the council is to nullify the selection or election not the approval. It was not possible for the 1st Respondent to have petitioned the 3rd Respondent over the exercise which favoured him, it was argued. It would be unreasonable if it was the intention of the legislators that a person aggrieved by the action of the Governor should challenge the Governor before the Emirate Council as to whether he acted rightly or wrongly.
It was submitted that under Section 8(1) of the Adamawa State Creation of District Law 1992 (as amended), there is no legal line of action to resort to by a person dissatisfied with the action of the Governor who is the last authority in the process of appointment of District heads in Adamawa State.
In this matter, the entire cause of action maintained learned counsel for the 1st Respondent, arose from the approval of the name of the Appellant by the Governor and not the election or selection. It was submitted that where the reliefs sought in the Court below were directed at the legality of the action or inaction of the Governor in the exercise of his power of approval under Section 7(1) and (2) of the enabling Law which did not provide a procedure for an aggrieved person over the actions of the Governor recourse would be had to the High Court. Therefore the High Court in the exercise of its supervisory power under Sections 6(6)(b) and 272(1) of the 1999 Constitution FRN (as amended) can be approached by such an aggrieved person. There was no other forum for addressing the grievance of the 1st Respondent outside the Court below, it was submitted.
On issue 2, it was submitted that the recommendation of the 1st Respondent being in writing, it was expected that the alleged withdrawal of the 1st Respondent and subsequent recommendation of the Appellant would have equally been in writing.
The Court below, it was submitted, found that the Appellant did not prove his recommendation and that without recommendation, there would not have been a valid lawful approval and appointment and that this finding was not appealed against.
In the instant matter, learned counsel for the 1st Respondent pointed out, neither the Appellant nor the community petitioned the Emirate Council as required by Section 8(1) of the Law but some village heads. And the petition was not addressed to the Emirate Council but to the Governor. That the petition was written in anticipation of the recommendation not after the appointment. It was submitted that under the Law, only the Emirate Council is empowered upon finding merit in the petition to nullify and order the conduct of fresh election or selection.
It was submitted that the Governor was wrong when he ignored the name duly recommended to him by the Council for approval and proceeded to recommend and approve the name of the Appellant. It was submitted that anybody or statutory authority vested with power to do an act can only validly execute that act within the limit and prescription of the enabling statute. To do otherwise, the action will be ultra vires and a nullity. The Court was referredELESO V. THE GOVERNMENT OF OGUN STATE & ORS (1990) LPELR – 1114 AT 35 – 36. The alternative consequence of such act is that it should be struck out, it was submitted.
It was submitted that the role of the village heads in the appointment of District Heads whether under Section 7(1) or Section 7(2) of the enabling Law is restricted to nomination. That the power to elect is vested in the Emirate Council. That is why the representative of the council in any appointment exercise, in his report is to forward three names nominated by the village heads not one for the council to deliberate upon and in the end elect one and recommend to the Governor for approval. The Court was referred ATTORNEY GENERAL OF ADAMAWA STATE & ORS V. WARE (2006) LPELR -609 AT 14-16.
The Appellant’s Reply Brief of Argument was not dealing with any points arising from the 1st Respondent’s Brief. I will therefore discountenance it. See Order 19 Rule 5(1) of the Court Appeal Rules 2016.
A preliminary objection is only filed for the sole purpose of informing the Court that the appeal is incompetent or fundamentally defective. If it succeeds, the appeal should no longer be heard.
One ground of appeal can sustain an appeal. See Shittu V. P.A.N. Ltd (2018) 15 NWLR (Pt. 1642) 195 at 206 and UWAK V. EKPENYONG (2019) 7 NWLR (Pt. 1670) 67 at 77.
In the instant case, the appeal can be sustained even on ground 2 alone which challenges the jurisdiction of the Court below.
But the 1st Respondent has cleverly attacked the notice of appeal itself. Of course, the notice of the appeal is the foundation of the appeal. Once it is not properly before the Court, the foundation of the appeal is gone. I agree entirely with learned counsel for the Appellant that the learned counsel for the 1st Respondent has erroneously relied on the High Court Civil Procedure Rules to attack the notice of appeal. As the notice of appeal was signed by Appellant’s counsel, fees paid thereon, receipt number and date of payment endorsed on it in compliance with the Rules of this Court, the notice of appeal is competent. In the circumstances, the preliminary objection is overruled by me.
I will determine the appeal on the issues formulated by the Appellant.
It is an established principle of law that a Governor of a State can only act in pursuance of the powers given to him by law. SeeELEKO V. OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA (1931) A.C. 662. Sections 7 and 8 of the Adamawa State District Creation Law 1992 (as amended) provide as follows:
“7(1) The procedure for the selection or election and appointment of District Head shall be in the following manner where traditional or customary methods of selection of District Heads exist.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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a. Selection shall be done on accordance with tradition and custom of the area constituting the District and under the supervision of a representative of the Council and such security agents as the council may request.
b. The representative of the Council shall within one week make a report in writing to the Council of the result of the selection and submit same indicating the first three persons who have scored the required number of votes set down by the Council.
c. On receipt of the report, the Council shall deliberate on the report and shall recommend one person to the Governor for approval as the District Head of the District concerned.
d. The Council shall within one month of the approval take necessary steps to perform the Turbaning Ceremony.
(2) Where no traditional methods of selecting District Heads exist:
a. Where a vacancy exist, and applications are received by the Council, the Council shall arrange for the election at an appointed date and time and save for security reasons the election shall be conducted at the Headquarters of the District.
b. The Village Heads shall be the selectors.
c. The election shall be conducted under the supervision of a representative of the Council and such number of security agents as may be required by the Council to keep the place and issue a separate report of the election.
d. The representative of the Council shall within one week make a report in writing to the Council of the result of the election and submit same indicating the first three persons who have scored the required number of votes as set down by the Council.
e. On receipt of the report and comments, the Council shall deliberate on the report and comments and recommend only one person to the Governor for approval as the district Head of the District concerned.
f. The council shall within one month of the Governor’s approval take necessary steps and perform the turbaning.
8(1) The Council shall make known to all those recommended their final decision two weeks before sending their recommendation to the Governor.
(2) Any aggrieved person who has sought to be selected or elected as a District Head or any Community aggrieved may within two weeks petition to the Council.
(3) The Council shall proceed to determine the Petition and if reasonable grounds exist, a committee shall be set up to investigate the allegation raised in the petition and if established, the selection or election shall be nullified and a fresh one ordered within one month such nullification.”
Throwing light on Section 7 of the above Law, Musdapher JSC (as he then was, later CJN and now of blessed memory) said in ATTORNEY GENERAL OF ADAMAWA STATE GOVERNMENT & ORS V. WARE (2006) LPELR SC – 609 thus:
“The Emirate Council shall then consider the three names nominated by the village heads and recommend only one name to the Governor who will appoint him as the District Head ……
The function of the electoral college formed by the village heads is clearly to “nominate” while the recommendation and the eventual appointment is left to the Emirate Council and the Governor respectively.”
Learned council for the Appellant submitted that the 1st Respondent did not at first exhaust the internal mechanism before going to Court. According to the Appellant’s counsel, the internal mechanism is provided for under Section 8(2) of the Law. The person aggrieved under Section 8(2) of the Law as rightly pointed out by learned counsel for the 1st Respondent is one who sought to be elected or selected by the village heads. But in the instant matter, the complaint of the 1st Respondent was not on the election or selection by the village heads. It was not even on the recommendation by the Emirate Council as both were in his favour. His complaint was on the approval by the Governor of another person, the Appellant who was not recommended for approval by the Emirate Council. I agree with the 1st Respondent’s counsel that Section 8(2) of the Law does not envisage a recourse to it against the action or inaction of the Governor. Section 8(2) of the Law was not available to the 1st Respondent to ventilate his grievance. Where the Governor as in the instant matter appoints a person who was not recommended by the Emirate Council, the person recommended cannot fall back on Section 8(2) of the Law. That does not mean that the person who was recommended by the Emirate Council and was not appointed by the Governor does not have a channel through which he can ventilate his grievance or dissatisfaction with the action or inaction of the Governor. As rightly pointed out by learned counsel for the 1st Respondent, the person who was recommended by the Emirate Council but not appointed by the Governor can challenge the action or inaction of the Governor in court. See Section 6(6)(b) and 272(1) of the 1999 Constitution FRN(as amended).
Issue 1 is therefore resolved against the Appellant.
Learned counsel for the Appellant further contended that the Emirate Council did not comply with the Law reproduced above without pointing out which provision of the law was not complied with. According to learned counsel for the Appellant, the Emirate Counsel should have recommended the person with the highest number of votes. He did not refer to the Section of the Law which says that the Emirate council after deliberations on the three names forwarded to it should recommend the person with the highest votes. If there were such provisions, then there would possibly be no deliberation by the Council on the three names forwarded to it. There would not even have been the need to send three names to the Council in the first place. In that case the selection of the District Head would only be the affair of the village heads. But that is not the law. See A.G. OF ADAMAWA STATE V. WARE (SUPRA).
Issue 2 is therefore resolved against the Appellant.
In its judgment, the Court below at pages 251 and 254 of the record held that the law did not provide that the person who scored the highest number of votes shall be returned as duly elected. That it provides that only one person shall be recommended to the Governor for approval as District Head upon deliberation by the Council. That the Governor is not given the latitude to go outside what was recommended to him for approval. That the Appellant led no evidence to show that the 1st Respondent was erroneously recommended. That there is no evidence that the 1st Respondent’s recommendation was withdrawn and the Appellant subsequently recommended. That the letter of protest Exhibit A annexed to the counter affidavit of the Appellant is no such recommendation. Therefore the Governor acted in error when he approved the name of the Appellant as District Head without any recommendation.
These findings and conclusion by the Court below are unimpeachable. I myself have carefully looked at the affidavit evidence. Exhibit A annexed to the affidavit in support of the originating summons contains the recommendation of the 1st Respondent by the emirate council for appointment by the Governor as the District Head of Jalingo-Maiha. The Emirate Council recommended the 1st respondent alone for the appointment. The Governor without complying with law appointed the appellant who was not recommended by the Emirate Council as the District Head of Jalingo-Maiha.
The Appellant in his counter affidavit claimed that the recommendation by the emirate council was erroneous. He did not say why it was erroneous. He also deposed that the recommendation was withdrawn. He did not say who withdrew the recommendation of the 1st Respondent by the Emirate Council. As learned counsel for the 1st respondent rightly pointed out, as the recommendation was by a letter Exhibit A annexed to the affidavit in support of the originating summons, a withdrawal of the recommendation should have been in writing. No such letter has been exhibited by the Appellant.
Again I repeat that there is nothing to show that that the person with the highest number of votes had to be recommended by the Emirate Council after deliberations on the three names forwarded to it. Exhibit A annexed to the counter affidavit of the Appellant was not a recommendation by the Emirate Council for the appointment of the Appellant as District Head of Jalingo Maiha as contended by learned counsel for the Appellant.
As I pointed out earlier, the Court below was on firm ground when it found that the Governor was wrong to appoint the Appellant who was not recommended for appointment by the Emirate Council instead of the 1st Respondent who was so recommended. As shown in A.G. ADAMAWA STATE V. WARE (SUPRA) after recommendation by the Emirate Council comes appointment by the Governor. The law did not create any room for manoeuvre. The village heads and the Emirate Council acted within the powers given them by the Law. But the Governor tried to manoeuvre. Therefore he did not act in accordance with the powers given to him by law. The Governor can only act in accordance with the powers given to him by the Law. This, he did not do. See ELEKO V. OFFICER ADMINSTERING THE GOVERNMENT OF NIGERIA (SUPRA).
Issue 3 is also resolved against the Appellant and in favour of the 1st Respondent. I will at this stage advise counsel (in this case, 1st Respondent’s counsel) to mind his language. “Nay” is a language of parliament and not the language of the Court. Even in formal English, it ceased to be used since the 17th century. “Nay” has since been replaced with “no”. It was also not proper for 1st Respondent’s counsel to submit that the Governor “goofed.” It is improper for 1st Respondent’s counsel to use derogatory language against counsel on the other side. In this case, it was wrong for 1st Respondent’s counsel to suggest that Appellant’s counsel was engaging in “insincere polemics.” Above all, there is no need for counsel to be overtly bombastic in his brief.
Finally, all three issues having been resolved against the Appellant, the appeal is hereby dismissed by me. The judgment of the Court below is hereby affirmed.
Parties shall bear their respective costs of the appeal.
CHIDI NWAOMA UWA, J.C.A: I read in advance a draft copy of the judgment just delivered by my learned brother James Shehu Abiriyi JCA.
I agree with the decision arrived at in dismissing the appeal.
I abide by the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the draft of the judgment just delivered by my learned Brother Abiriyi JCA. I agree with the reasoning and the conclusion reached in the lead judgment. I also dismiss the Appeal for the more elaborate reasons contained in the lead judgment.
I abide by the order as to costs.
Appearances:
P. Atsev, Esq. For Appellant(s)
E.A. Ibrahim-Effiong, Esq., with him, S.B. Wariyaki, Esq. for the 1st Respondent.
I.S. Barde Senior State Counsel, Ministry of Justice, Adamawa State with him, H. Abdulmalik for the 2nd-4th Respondents. For Respondent(s)
