David Sabo Kente V. Darius Dickson Ishaku & Ors (2017)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the decision of the Court of Appeal, Yola Division, hereinafter referred to as the Lower Court, in appeal No CA/Y1/106/2015 delivered on 29th June, 2016. The lower Court in upholding the preliminary objections of the respondents challenging the competence of appellant’s Notice of Appeal purportedly filed against the ruling of the Federal High Court, sitting in Yola, in Suit No. FHC/TAR/CS/14/15 dated 17th September, 2015, struck out the Notice. Dissatisfied with the lower Court’s judgment, the appellant has appealed to this Court on a Notice filed on 19th July, 2016 containing five grounds. A brief summary of the facts on which the appeal predicates is supplied immediately below.
The appellant commenced Suit No. FHC/TAR/CS/14/15 at the Federal High Court Jalingo by an originating summons seeking the determination of an only question thus:-
“Whether the 2nd Defendant for the purpose of selecting candidate for Governorship primary for Taraba State for the 2015 general elections can adopt a procedure other than stipulated in the Electoral Act 2010 (as amended)
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the 2nd Defendant’s Constitution 2012 and the Electoral Guidelines for the primary elections 2014.”
The appellant urged the Court to, in the event of a favourable answer to his question, inter-alia, nullify the 2nd respondent’s:-
“Purported primary election conducted on the 11th December, 2014 with the view to selecting the party’s candidate for the 2015 Governorship election in Taraba State, and for an injunctive order to restrain the 3rd respondent from accepting and/or recognizing in any manner the name of the 1st respondent as 2nd respondent’s candidate in the impending election.”
Appellant’s Originating summons is accompanied by a supporting affidavit and series of annextures. His case is that being a card carrying member of the 2nd respondent and intending to seek election into the office of the Governor of Taraba State, he purchased the 2nd respondent’s nomination and expression of interest form. He also paid administrative charges in that regard. On submitting the forms, appellant asserts, he was screened and cleared by the 2nd respondent to contest its Taraba State primary election for the 2015 election into the Governorship office of
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the State. It is his case that the primary election was conducted in breach of the party’s Constitution, the Electoral Act and the guidelines issued by the 3rd respondent thus his claim at the trial Court.
Upon being served the originating summons, the 1st and 2nd respondents, in addition to their counter-affidavits in opposition thereto, filed notices of preliminary objection challenging the competence of the suit and the jurisdiction of the trial Court to hear and determine same. In two separate rulings delivered on 17th September, 2015, the trial Court upheld, in each, the respective preliminary objection of each of the respondents and struck out appellant’s suit.
Not satisfied by these rulings, the appellant purportedly appealed against them. At the hearing of the appeal at the lower Court, the 1st and 2nd respondents raised a preliminary objection as to the competence of some of the grounds of appeal while the 3rd respondent, by his preliminary objection, challenged the competence of the Notice of Appeal filed on 22nd October, 2015 in its entirety. In upholding the objections of the two sets of respondents, the lower Court struck out appellant’s
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Notice of Appeal it adjudged incompetent thus this instant appeal.
Having filed and exchanged their briefs of argument parties have, at the hearing of the appeal, adopted and relied on same as their arguments for or against the appeal.
Embedded in the 1st and 2nd respondents’ brief are arguments on the preliminary objection in respect of which a notice had earlier been issued. The appellant, be it noted, filed no response to the preliminary objection. I shall, very briefly, dwell on the preliminary objection.
Submissions made in support of the preliminary objection are reflected in paragraphs 5.0 to 6.12 at pages 5 to 12 of the 1st and 2nd respondents’ brief of argument. 1st and 2nd respondents’ objection rests squarely against the 5th ground, the omnibus ground which as rightly urged, being the omnibus ground, is improper in civil appeals. The 1st ground of appeal, a clear complaint that the lower Court is wrong in striking out appellant’s Notice of Appeal for the reasons the Court advances, is competent and the objection against the very ground therefore fails.
The 1st and 2nd respondents seem to wallow in immense misapprehension as to the
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purpose of a preliminary objection in the litigation process. It is a challenge to the competence of a Court’s process, be it an appeal, a suit or motion as the case may be, which primary objective is to terminate the proceedings at the stage the objection is raised. In the instant case where there are other grounds of appeal by virtue of which the appeal endures, respondents’ preliminary objection is for that reason inappropriate and accordingly discountenanced. See General Electric Co V. Harry Akande (2011) 4 NSQR 611 and Nigerian National Petroleum Corporation & Anor V Famfa Oil Limited (2012) LPELR-7812 (SC) (consolidated). Resultantly, the appeal endures on the basis of the 1st, 2nd, 3rd and 4th grounds of appeal.
The first of the two issues the appellant distilled in his brief and by virtue of which the appeal will be determined reads:-
“Whether the disclosure of the number of the suit from which an appeal is laid (correctly or erroneously) under part one of the Notice of Appeal is fundamental to the validity or competence of the appeal” Distilled from ground 1& 5.
1st and 2nd respondents’ inelegant but similar issue to the
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appellant’s foregoing issue, the first of their four issues, reads:
“Whether the Honourable lower Court was right especially when there was no challenge against the contention of the 3rd respondent by the appellant when she held that the Notice of Appeal filed by the Appellant before the lower Court was incompetent on the ground that there was a disconnect between it and the judgment of the lower trial Court delivered in suit No. FHC/TAR/CS/14/15” Distilled from ground 1.
The lone and more succinct issue distilled by the 3rd respondent as arising for the determination of the appeal reads:-
“Whether the lower Court was in error when it struck out the appellant’s notice of appeal and appeal on the ground that they are incompetent.” Distilled from grounds 1, 2, 3 and 4.
Arguing the issue in the brief, learned appellant’s counsel submits that his appeal at the lower Court was prepared and filed in compliance with Order 6 Rule 2(1) (2) and (3) of the Court of Appeal Rules 2011 which requires the appellant to adopt Form 3 the particulars of which are set out in the First Schedule to the Rules. Further relying on the case of Oloruntoba-Ojo V.
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AbdulRaheem (2009) 13 NWLR (Pt 1157) 83 at 120, it is argued that by the relevant Rules of Court and guidelines in decided cases, disclosure of the suit number from which an appeal to the Court of Appeal arose in the notice of appeal is neither required nor mandatory. The non disclosure of the suit number, contrary to the lower Court’s decision, it is further argued, does not render the notice of appeal incompetent. At the trial Court, it is submitted, the number of the suit commenced by the appellant and in respect of which decision the appeal at the lower Court was filed is FHC/TAR/CS/14/2015. However, it is submitted, Suit No. FHC/TAR/CS/5/2015 was wrongly entered in the notice of appeal instead. The lower Court, learned appellant’s counsel contends, is wrong to have refused to proceed on the basis of the real intention of the appellant and interest of justice. The appellant it is submitted, had filed two suits and appealed against decisions in the two on similar facts. Relying on the decision in Abubakar V. Yar’Adua (2008) 1 SCNJ 549, Nwabueze V. Okoye (1988) 10-11 SC 77 at 139 and FRN V. Dairo (2015) 1 SCNJ 1 at 33 learned counsel concludes that the lower
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Court’s refusal to accept his mistake as inevitable having occasioned miscarriage of justice is fatal to the Court’s decision. The appeal, learned counsel urges, be allowed.
Responding under their 1st issue, learned counsel to the 1st and 2nd respondents submits that the lower Court’s finding that appellant’s purported appeal against a non-existing or alien decision that has arisen in Suit No. FHC/TAR/CS/5/15 cannot be faulted. At pages 344 – 345 and 346 – 362 of the record of appeal respectively, it is submitted, are the 3rd respondent’s preliminary objection and brief of argument at the lower Court. The appellant, it is further contended, never filed a reply to the preliminary objection but rather, at 467 of the record, relied on his response to the 1st and 2nd respondents’ preliminary objection, which is on a different issue, as being exhaustive. Relying on Order 18 Rule 5 of the Court of Appeal Rules 2011, learned counsel further argues that the appellant must be deemed to have conceded to the grounds of the 3rd respondent’s objection on the incompetence of the Notice of Appeal.
Beyond appellant’s failure to respond to 3rd respondent’s objection,
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learned counsel submits, the lower Court’s poignant findings at pages 482 – 483 that appellant’s notice of appeal is in respect of a decision reached in Suit Number FHC/TAR/CS/5/15 instead of the trial Court’s ruling in Suit Number FHC/TAR/CS/14/15 cannot be wished away. Strictly, it is argued, the appellant has not appealed against the lower Court’s findings in this regard thus leaving this Court with no option other than to affirm the subsisting findings. Relying inter-alia on N.B.C.I. V. Integrated Gas (2005) 2 SCM 67 at 205, Dabo V. Abdullahi (2005) 4 SCM 52 at 69, Bhojsons Plc V Kaho (2006) 4 SCM 1 at 13-14 and Onafowokan V. Wema Bank Plc (2011) ALL FWLR (Pt. 585) 201, learned counsel urges that the lower Court’s unchallenged findings be taken as having been admitted and subsisting.
Further responding, learned counsel submits that the appeal process does not accommodate appellant’s plea for leniency for the obvious blunder of his counsel who, on the authority of C.P.C. V. INEC (2012) ALL FWLR (Pt 617) 605 at 662 is under duty to conduct his client’s case competently. Concluding, learned counsel submits that the appellant whose attempt at appealing falls
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short of the requirements of Order 6 Rule 2(1) of the lower Court’s Rules, remains unworthy of this Court’s indulgence as well. Litigation, it is argued, is not about sentiments. Appeals, by the very Rules of Court, must be tied to a specific decision. Not having properly indicated the particular decision in his notice of appeal, the lower Court and indeed the respondents, it is submitted, are under no duty to speculate as to appellant’s real grudges and thus the necessity to discountenance appellant’s false start. On the whole, it is urged that appellant’s unmeritorious appeal be dismissed.
The 3rd respondent submits that its preliminary objection at the lower Court is that there was no decision at all between it and the appellant in Suit Number FHC/TAR/CS/5/15 for which the appellant had filed a notice of appeal but transmitted a record of appeal in respect of Suit Number FHC/TAR/CS/14/15. Thus, it is further contended, whereas the decision of the trial Court that involves the parties is in respect of Suit Number FHC/TAR/CS/14/15, the decision the subject matter of the appellant’s notice of appeal is in respect of Suit Number FHC/TAR/CS/5/15. An appeal,
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it is submitted, arises only from the decision of Court. Where there is no decision between parties from a Court and/or where the notice of appeal is in respect of a non-existing decision an appellant’s right of appeal cannot properly enure against a party by the combined operation of Section 241(1) and Order 6 Rule 2(1) of the lower Court’s Rules. Appeals, it is submitted, are creatures of Statutes. Where they are not in compliance with the enabling Statutes and the Rules of Court, it is further submitted, the appellate Court will lack the necessary jurisdiction to proceed. Learned counsel cites UBA Plc V. BTL Industries Ltd (2007) ALL FWLR (Pt 352) 1675, AG Anambra State V. Okeke (2002) FWLR (Pt 112) 175 and Uwazurike V. A.G Federation (2007) ALL FWLR (Pt 367) 834 in support of his contentions and insistence that the appeal be dismissed.
Now, the facts of the instant matter have ceased to be in doubt. The appellant had commenced Suit Number FHC/TAR/CS/14/2015 at the trial Court. In purporting to appeal against the trial Court’s decision in the suit delivered on 17th September, 2015 unfavourable to him, the appellant filed his notice of appeal to the lower
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Court, see page 294 of the record of appeal, part one of which reads:-
“NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourdble D.U. Okorowo, Judge, dated the 17th day of September, 2015, in SUIT NO: FHC/TAR/CS/5/15, do hereby appeal to the Court of Appeal, Holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves out in paragraph 4
AND the appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.”
The facts contained in the foregoing part of the appellant’s notice of appeal and the reliefs canvassed thereon informed the preliminary objections of the respondents as to the competence of the notice as well as the appeal. In particularly upholding the 3rd respondent’s preliminary objection, the lower Court at page 482 of the record of appeal held inter-alia as follows:
“The Ruling complained of in this Notice of Appeal is a Ruling of the said Court in Suit Number
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FHC/TAR/CS/5/15; Whereas the Ruling of the lower Court (at page 246 to 258 of the Record) is in respect of Suit Number FHC/TAR/CS/14/15. Consequently, it is patently obvious that the Notice of Appeal (at page 294 of the Record of Appeal) has no bearing on the said Ruling of the Federal High Court Taraba Division. Since there is therefore a disconnection and no nexus between decision appealed against in the Notice of Appeal and the Ruling of the trial Court, the Notice of Appeal is fatally defective and indubitably incompetent.
Consequently, there is no appeal against the decision issued by the Federal High Court Taraba Division sitting in Jalingo on 17th September, 2015 in Suit Number FHC/TAR/CS/14/15 between David Sabo Kente v. Darius Dickson Ishaku & 2 ors… this Court has no jurisdiction to entertain the said Notice of Appeal dated 21st October, 2015 and filed on 22nd October as same is appealing against an unknown, strange and alien decision which is not before this Court in the Appeal entered in this Court by virtue of the Record of proceedings transmitted on the 16th November 2015… As a result, the Notice of Appeal … as well as
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the Appeal in its entirety is struck out on the ground of incompetence.”
One cannot agree more with the lower Court. A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competently before it and when same is initiated by due process of the law. Failure of an appellant to relate his Notice and grounds of appeal to the actual decision he is dissatisfied with renders the Notice of Appeal incompetent and nugatory. Because it is the foundation or substratum of the appeal, the incompetence of the notice of appeal negates the entire appeal as well. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Atolagbe V. Awuni (1997) 9 NWLR (Pt 522) 536 and CBN v. Okojie (2004) 10 NWLR (Pt 882) 488; SPDC Nig Ltd V. Sam Royal Nig Ltd (2016) LPELR-40062 (SC). In FBN Plc V. T.S.A. Industries Ltd (2010) LPELR-1283 {SC}, a decision on which the lower Court relied, this Court restated the principle thus:-
“A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is
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incompetent.
The question of whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.”
The appellant cannot simply be right in asserting that in abiding by the foregoing decision of this Court the lower Court has erred. The appellant has insisted that notwithstanding the incompetence of this notice of appeal the lower Court should have proceeded in the interest of justice to hear and determine the appeal. The Court cannot exercise appellate jurisdiction beyond what and how Section 240, 241 and 243 of the 1999 Constitution as amended cumulatively confer on it. Appellant’s right of appeal, as donated by the Constitution is not at large.
By Section 241 (1)(a) of the Constitution, it is only when he appeals against the specific decision of the trial Court he is aggrieved with that the lower Court’s jurisdiction to entertain the appeal avails him. The lower Court’s refusal to assume jurisdiction when it has none does not amount to undue and untoward inclination at doing technical justice. The
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Court’s primary function is to dispense justice according to law. Appellant is wrong to insist otherwise.
On the whole, l find the appeal devoid of merit, dismiss same and affirm the lower Court’s decision. The appellant shall pay costs of the appeal put at N100,000.00k (Hundred thousand naira) to each of the respondents.
SC.666/2016
