Borno State Independent Electoral Commission (Bosiec) & Ors V. Alhaji Ali Kachala (2005)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

On 25th June, 2004, Juddum Mohammed, J., delivered a ruling in favour of the plaintiff who is the respondent in this appeal. The learned trial Judge granted the reliefs sought in the plaintiff’s originating summons. Dissatisfied, the defendants appealed to this court.

Set out hereunder are the questions for determination by the court in the originating summons of the respondent, together with the reliefs sought, the statement of facts and particulars in support of the application.

The application of the plaintiff is for the determination of the following questions:-

“1. Whether having regards to S. 197(i)(b) and paragraphs 3 & 4(a) Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, read together with sections 3 & 4 of the Borno State Local Government Elections and Election Petition Law, 2004, any other person apart from the Borno State Independent Electoral Commission is charged with the conduct of elections to Local Government in Borno State?

2. If question 1 is in the affirmative, whether the Executive Governor of Borno State (sic) the Caretaker Chairman of Mobbar Local Government has powers to direct the cancellation of return of the plaintiff as elected Chairman of Mobbar Local Government at the elections that took place on the 27th March, 2004?
3. Whether the cancellation of the elections in Mobbar Local Government after the return of the plaintiff as elected Chairman for whatever reason is not ultra vires the powers of the Borno State Independent Electoral Commission (BOSIEC) having regard to S. 50(1)(2)(3)(4)(5) & (6) read together with paragraph 18(3)(f), 21(1-4) & 22(a) of the Borno State Local Government Elections & Elections Petition Law, 2004 & the Guidelines for Local Government Council Elections, 2004 respectively?
4. Whether having returned the plaintiff as duly elected, under the relevant laws. (Sections 11(2), 37, 42 & 46(1)(2) of Borno State Local Government Elections and Elections Petition Law, 2004 and paragraph 22(a) of the Guidelines for Local Government Council Elections, 2004), the defendants can annul the plaintiff’s election without presenting an election petition at the Borno State Local Government Elections Tribunal challenging his return on the grounds specified in the law.

And whereof the plaintiffs hereby seek the following reliefs from this court.

1. A declaration that only the Borno State Independent Electoral Commission (BOSIEC) is charged with the responsibility of conducting Local Government Elections in Borno State.
2. A declaration that the 3rd defendant or any other person whatever cannot direct the 1st defendant to cancel the election of Mobbar Local Government, whereas the plaintiff was duly returned elected.
3. A declaration that the cancellation of the Mobbar Local Government held on the 27th March, 2004, by the 1st defendant is ultra vires the powers of the 1st defendant.
4. A declaration that the plaintiff having been duly returned elected by the agents of the 1st defendant as required by law as chairman of Mobbar Local Government on the 28th March, 2004, cannot again cancel or question the return except through an election petition properly presented at the Borno State Local Government Election Petition Tribunal.
5. An order setting aside the purported cancellation of the election into Mobbar Local Government held on the 27th March, 2004, by the 1st defendant.
6. Injunction restraining the defendants their servants and/or agents from conducting another fresh election in Mobbar Local Government or from taking any steps towards the conducting of election for chairmanship position in Mobbar Local Government Borno State.
7. An order directing the 3rd defendant to swear in the plaintiff as the elected chairman of Mobbar Local Government forthwith.

Statement of facts and particulars in support of the application.

1. The plaintiff is a Nigerian citizen and was duly returned elected as the chairman of Mobbar Local Government at the elections held on the 27th March, 2004.
2. The 1st defendant is a creation of the 1999 Constitution charged with the organization and conduct of Local Government elections in Borno State.
3. The 2nd defendant is the Chief Law Officer of Borno State charged with the responsibility of defending the Government in all legal matter and prosecuting action on behalf of the Government.
4. The 3rd defendant is the Executive Governor of Borno State created by the Constitution of Nigeria, 1999.
5. The 1st defendant conducted Local Government elections in Borno State on the 27th March, 2004 and made returns of elected candidates thereof.
6. The plaintiff contested elections conducted on the 27th March, 2004, for the office of Chairman Mobbar Local Government and was duly returned elected on the 28th March, 2004, by the 1st defendant and her agents.
7. The 3rd defendant as Executive Government of Borno State directed the 1st defendant to cancel or annul the return of the plaintiff and ordered fresh election at Mobbar Local Government.
8. The 1st defendant without proper advise (sic) from the 2nd defendant annulled the return of the plaintiff based on the aforesaid directive and other purported reasons ordered fresh election to be held in Mobbar Local Government.
9. The originating summons shall be grounded and verified by affidavit of the plaintiff.

Statutes to be relied upon during the hearing of the suit

1. The Constitution of the Federal Republic of Nigeria, 1999.
2. Borno State Local Government Election Law, 2004.
3. Guidelines for Local Government Council Elections, 2004.
4. Manual for Election Officials, 2004.
5. Other Relevant Statutes”.

The summons was supported by a verifying affidavit of 13 paragraphs sworn to by the plaintiff himself. In paragraphs 2-11 relevant hereto, he deposed as follows:-

“2. That I know as a fact that, registered political parties presented candidates for Local Government Elections in Borno State and I was presented by the Peoples Democratic Party (PDP) for Chairmanship office at Mobbar Local Government.

3. That the 1st defendant is the body charged with the organisation and conduct of Local Government Election in Borno State and had conducted election on the 27th March, 2004, into offices of chairman and councilor for the 27 Local Governments.
4. That on the 27th March, 2004, the day of the elections the 1st defendant secured the assistance of security agents to facilitate peaceful conduct of elections at all the 10 wards in Mobbar Local Government and specifically at all the ward collation centres and Local Government collation centres together with accredited agents of the parties that fielded candidates.
5. That after the close of the polls and collation of all the results at the Local Government collation for Mobbar Local Government, I was returned elected chairman of Mobbar by the 1st defendant and its agents and a declaration Form EC(8E) was given to me dated 28th March, 2004. Now shown to me is a copy of the declaration of result form marked as exhibit ‘A’.
6. That the officers of the 1st defendant also gave my agents a copy of the summary of results from wards for the election of the chairman; Form EC8C, which contains the votes received by the parties dated 2Sth March, 2004, wherein I scored 6,370 to emerge the winner. Now shown to me marked as exhibit ‘B’ is a certified true copy of the form dated 28th March, 2004.
7. That on the 29th March, 2004, at the office of the 1st defendant when I came to their office, I was informed by the chairman of the 1st defendant and I verily believe him to be true that the 3rd defendant had directed through the Chairman, Caretaker Committee of Mobbar Local Government vide a letter dated 27th March, 2004
8. That on the 29th March, 2004, by the 1st defendant, requesting them to cancel the entire election at Mobbar Local Government. Now shown to me marked as exhibit ‘C’ is a copy of the letter.
9. That I briefed the secretary of PDP in Mobbar Local Government on my findings and on the 1st April, 2004, the secretary conveyed the position of the PDP in Mobbar Local Government to the Chairman, Borno State Independent Electoral Commission in a letter dated 1st April, 2004. Now shown to me marked as exhibit ‘D’ to (sic) a copy of the letter.
10. That the 1st defendant purportedly cancelled my return through a letter dated 29th March, 2004, copied to all parties including my party and that a fresh election be held soon. Now shown to me marked as exhibit ‘E’ is a copy of the letter dated 29th March, 2004.
11. That I know as a fact that, there is no election petition challenging my return by anybody at the Borno State Local Government Election Tribunal.
12. That I know as a fact that, election in Mobbar Local Government were conducted in substantial compliance with the principles of the law.”

Form EC(8E) – exhibited as exh. A with the affidavit dated 28th March, 2004, for Mobbar Local Government is entitled “Borno State Independent Electoral Commission Declaration of Result for Election to the Office of the Chairman”. It is shown at the bottom to be issued to Alhaji Ali Kachalla of PDP as, “having satisfied the requirement of the law and scored the highest number of votes hereon declared the winner and is returned elected”.

The respondent was recorded in exh. A as scoring 6,370 votes. Exhibited also is summary of results of the 10 wards collated and signed by Mohammed M. Biu, collation officer and dated 28/3/2004. It was him who also signed exh. A as the returning officer. There are other exhibits to be referred to in due course.

The appellants, by a motion on notice filed on 1/6/2004, applied to the trial court for an order striking out the originating summons on the ground that the High Court lacks jurisdiction to entertain the suit. In paragraph 3, thereof particulars supplied in the accompanying affidavit of 5 paragraphs read as follows:-

“(a) The relief sought by the plaintiff… is in connection with Local Government Election.

(b) Complaints arising from Local Government election is to be presented before Local Government Election Tribunal”.

“Paragraph 4: That it will be in the interest of justice to grant this application”.

The respondent filed a counter-affidavit in reaction to the above.

Parties thereafter offered argument on this interlocutory application to strike out the originating summons, and on 3/6/2004, the learned trial Judge delivered a considered ruling. He held that the court had jurisdiction to entertain the suit.

I now return to the originating summons. The appellants had entered appearance thereof out of time and applied for leave of the court below to do so. They also filed a counter-affidavit in reaction to the originating summons and supporting affidavit of the respondent. It was on 3/6/2004, sworn to by A. K. Ballama, Esq., a legal officer in the office of the Attorney-General, the 1st respondent in the suit. In paragraphs 3 -6 he deposed thus:-

“3. That the applicant in this case is one of the contestants to the office of the chairman in Mobbar Local Government of Borno State.

4. That the first respondent… ordered for the cancellation of the Election into the office of the chairmanship of Mobbar Local Government…
5. That the cancellation was done after realizing that the overall result sheet was full of alterations of figures.
6. That the election was cancelled based on the reports of the electoral officer and the returning officer of Mobbar.

Another counter-affidavit sworn to on 16/6/2004 by the same State counsel, A. K. Ballama Esq., also deposed in relevant paragraphs 5-8 thus:

“5. That Mohammed M. Biu, the returning officer for Mobbar Local Government during the March 27, 2004, local government elections informed me in my office situated at the Borno State Independent Electoral Commission Headquarters here in Maiduguri on the 15th day of June, 2004, while on routine briefing in respect of this matter at about 12 noon whom I verily believe him to be speaking the truth as follows:-

a. That he was the returning officer for Mobbar Local Government for office of chairman for the March 27, 2004 elections.

b. That as the returning officer of the Local Government for the March 27, 2004, elections he is responsible for the collation of results from all the wards of the local government for the purposes of declaring the winner of the elections.

c. That results were never collated and a winner emerged contrary to the claim of the plaintiff in paragraph 5 of the verifying affidavit in support of originating summons.

d. That exhibits A and B attached to the verifying affidavit does not reflect what transpired in Mobbar Local Government on the 27th day of March, 2004, and therefore say with due respect that the exhibits are not correct at all as no result or winner was declared on the 28th day of March, 2004.

e. That as could be seen from exhibit B, there are cancellations, which have not been initialed or signed showing that there was no authentic result declared on the 28th day of June, 2004, as claimed by the plaintiff.

f. That it is wrong for the plaintiff to claim that he was declared winner of the elections as no winner emerged since the result were not properly collated as required by the guidelines for the elections.

g. That the chairman of the Borno State Independent Electoral Commission in the person of Alh. Mohammed Kachalla informed me in his office, situated at the Commission’s Headquarters, Maiduguri, on the 15th day of June, 2004, at about 3pm in course of routine, briefing in respect of this matter, whom I verily believe him to be speaking the truth as follows:-

a. That the chairmanship election in Mobbar Local Government area was not cancelled on the directives of the Executive Governor of Borno State, nor was it done at the issuance of anybody, but it was done by the commission based on its findings and reports from its officials and agents and the commission only exercised its powers as stipulated under the laws guiding the elections.

b. That from the briefings we received from the officials especially the Electoral Officer for Mobbar Local Government, there was no proper election for the office of chairman for Mobbar Local Government.

c. That exhibits A and B attached to the verifying affidavit in support of originating summons are not correct at all, as there was no conclusive elections and result returned on the 28th day of March, 2004.

d. That the commission did not purportedly cancel the result of the election, but rightly cancel the result of the polls because of apparent irregularities recorded and reported to the commission.

e. The elections in Mobbar Local Government were not conducted in substantial compliance with the law.

7. That I know as a fact that this originating summons has no merit at all and it will be in the interest of justice to refuse the prayers so that the commission will go ahead and conduct fresh and authentic polls so that a winner emerges.
8. That it will be in the interest of justice to refuse the prayers sought.”

In a further and better counter-affidavit, sworn to by Mohammed Biu. on 16/6/2004, he deposed in paragraphs 1-5 thus:-

1. That I was appointed as the Returning Officer for Mobbar Local Government Area for the March 27th, 2004, Local Government elections by the Borno State Independent Electoral Commission.
2. That as the returning officer, I am responsible for the collation of results and declaration of winner for the chairmanship elections.
3. That by virtue of that position I am conversant with the facts deposed to herein.
4. That I have the authority of the defendants in this matter to depose to this counter-affidavit.
5. That my attention was drawn to the originating summons taken out by Alhaji Ali Kachalla by Usman Tatama, Esq. of counsel on the 16th day of June, 2004, in his office situated at No. 10 Baga Road, and I have read through same including the annextures and now say as follows:

a) That exhibits ‘A’ and ‘B’ attached to the verifying affidavit of Alhaji Ali Kachalla are not correct as I never signed any declaration on the 28th day of March, 2004.

b) That no result was collated for the chairmanship election for Mobbar Local Government for the March, 27th June, 2004, election as no winner emerged, as there was total breakdown of law and order.

c) That the signature appearing on the two exhibits, i.e. ‘A’ and ‘B’ attached to the originating summons are not mine.

d) That it was not possible for me to have declared any result on the 28th March, 2004.

e) That I never declared Alhaji Ali Kachalla or any other person as winner of the said elections, because there was breakdown of law and order.”

A further verifying affidavit was sworn to by the respondent on 21/6/2004 in which he deposed in response to the counter-affidavit of the appellants of 16/6/2004 as follows:-

2. That further to the verifying affidavit I deposed to on 26th day of April, 2004, I state as follows:

a) That my counsel was served with a counter affidavit on the 16th June, 2004 and after I perused the paragraphs, I state that paragraphs 5(c)(d)(e)(f) and 6(a)(b)(c)(d) & (e) are not true.

b) That contrary to the paragraphs referred to above, elections were conducted, results from all the 10 wards in Mobbar Local Government were dully collated as indicated on exhibit ‘B’ and I emerged the winner of the election.

c) That exhibits “A & B” attached to my verifying affidavit are correct and truly reflects what happened at Mobbar Local Government on the 27th day of March, 2004, after the close of polls.

d) That the cancellations on exhibit “B” was initialed and signed by the maker of the documents as can be seen on the face of the documents and an authentic results was declared on the 28th day of March, 2004, refened to in the verifying affidavit as exhibit “A” and not 28th June, 2004.

e) That on the 16th June, 2004, at Dandal Way, Maiduguri at about 2:00 p.m., I was informed by Hon. Hassan Bukar Maibe, and I verily believe him to be true that on the 27th March, 2004, he was at the Mobbar Local Government collation center, when ward returning offices from the 10 wards of Mobbar Local Government Council brought in their results for collation and all the results were collated by the returning officer in the presence of security officials and party agents, into the summary of results sheet for chairmanship election, and signed same before declaring the results and gave copies to party agents present.

f) That the results collated into exhibit “B” are based on the results declared at the various ward levels of the 10 wards in Mobbar Local Government.

g) That there was proper election at Mobbar Local Government on the 27th day of March, 2004, and the election were conclusive and result declared as shown in exhibits “A & B” attached to the verifying affidavit.

h) That the purported cancellation of the chairmanship results by the 1st defendant was at the prompting of the Chairman, Caretaker Committee of Mobbar Local Government and His Excellency, the Governor of Borno State as contained in a letter dated 27th March, 2004, now shown to me marked exhibit “F” is a copy of the letter.

i) That the deposition of the defendants in the counter-affidavit are after thoughts and are meant to mislead the court.

j) That I was also served with a further-better counter-affidavit on 17th June, 2004, through my counsel and after I perused the said further and better affidavit I state as follows:

(a) That paragraph 5(a)(b)(c)(d)(e) therefore are false.

b) That Mohammed Biu who performed the duties of the returning officer for the 27th March, 2004, chairmanship election at Mobbar Local Government collated the results into exhibit “B” and declared me as elected as contained in exhibit “A” dated 28th March, 2004.

c) That there was no breakdown of law & order at Mobbar Local Government on the 27th March, 2004, the date of election as adequate security was provided by the Nigerian Police Force.

d) That the signatures on exhibits “A & B” attached to the originating summons are those of Mohammed Biu, the returning officer of the chairmanship election that declared me winner of the chairmanship election in Mobbar Local Government.

e) That the Commission vide letter dated 29th March, 2004, copied to all political parties cancelled the election conducted on the 27th March, 2004, into the chairmanship office of Mobbar Local Government Council. Now shown to me is the original copy of the letter sent to my party marked as exhibit “G”.

f) That the depositions of Mohammed Biu are deliberately done to mislead the court.”

The foregoing constitute the material and evidence upon which the court below based its decision in favour of the respondent as aforesaid, against which the appellants appealed to this court. In their appeal of 3 grounds which I will set out for ease of reference, they complain as follows:-

Ground One:

The lower court erred in law by entertaining the suit when it had no jurisdiction to do so.

Particulars of error

The general jurisdiction of the High Court of Borno State pursuant to S. 272 of the 1999 Constitution is subject inter alia to:

i. S. 251 of the 1999 Constitution

ii. S. 38(1) of the Borno State Local Government Elections and Election Petitions Law which was made pursuant to and by virtue of sections 4(7), 7, 197 and Part II(B), 4(9) of the 1999 Constitution.

b. There was, at the time the action was filed, an election tribunal for the Local Government Elections held in Borno State.

c. Hon. Justice P. H. Ngada who signed and issued the originating summons had declined jurisdiction and referred the matter back to the Hon. Chief Judge for reassignment.

d. The attention of the trial court was drawn to the fact that it had no jurisdiction to try the suit.

e. There is no law in existence in Borno State conferring jurisdiction on the State High Court to hear and determine election matter.

f. S. 38(1) of the Borno State Local Government Election and Election Petition Law confers exclusive jurisdiction on election matters to the Local Government Election Tribunal.

Ground Two

The lower court erred in law, when it entertained the incompetent suit filed by way of originating summons when the sole or principal question at issue was ‘election’ and not construction of the provisions of a written law.

Particulars of error

a. The 4 grounds for determination in the originating summons all relate to the alleged conclusiveness of an election and return of the same election.

b. The facts stated in paragraphs 7 and 8 of the particulars to the original summons are not facts therein supported.

c. Reading exhibits C, D and E attached to the verifying affidavit, it was clear to the trial court that there will be substantial dispute of facts.

d. There is no law authorizing the filing of election suits in Borno State through originating summons pursuant to Order 2, r. 39(4) of the Borno State High Court (Civil Procedure) Rules, 2004.

Ground Three

The lower court erred in law, by not striking out the suit as an abuse of court process when there is no law in existence in Borno State, supporting the cause of action and the process used by the plaintiff/respondent.

Particulars of error

i. not ordinary orders injunctions/declarations unconnected with election matters.

ii. made to annoy and overstretch the appellants.

Order of mandamus is not made where there is discretion”.

As is required by the Rules of this court, parties to this appeal filed and exchanged briefs of argument. The appellants later, on 25/1/2005, filed an amended brief of argument by leave of this court granted on 10/2/2005. They filed a reply brief on 14/2/2005.

For the respondent, his brief of argument was filed on 23/9/2004.

Learned Counsel for the appellants had identified in his amended brief of argument, the following 3 issues for determination distilled from the 3 grounds of appeal:-

(a) Whether the lower court had jurisdiction to entertain the suit at all (ground one).

(b) If the answer to issue No.1 is in the affirmative, whether the suit, as filed, i.e. by originating summons was competent in view of the disputes as to facts contained in the various depositions (grounds two).

(c) Whether the suit as filed was not an abuse of the court’s process (ground three).

Learned Counsel for the respondent had, in the first instance given notice of preliminary objection. He therein challenged the competence of the 3 grounds of appeal set out above. This he addressed first in his brief of argument. It is to this, the appellants responded in their reply brief, earlier referred to. Three issues for determination were also identified for the respondent, as follows:-

1. Whether the lower court had jurisdiction to entertain the suit having regard to the claim before it – ground 1.
2. Whether originating summons is not a proper procedure for communicating the respondent’s action – ground 2.
3. Whether the process issued by the lower court is an abuse of judicial process – ground 3.

At the hearing of the appeal, U. Tatama, Esq., leading U. A. Ngulde, Esq. holding the brief of Y. Mahmoud, Esq. for the appellants, adopted their brief of argument. In further expatiation of his brief, learned Counsel for the appellants identified their issue on page 6 of the brief. They pointed out that the High Court lacked jurisdiction to hear election petition. He urged this court to allow the appeal and set aside the decision of the court below, and to strike out the suit.

On his part, O. Wadzani, Esq., leading D. B. Sumomo, Esq. and A. R. Abdulsallam, Esq., for the respondent, drew the attention of this court to the new and more correct record of proceedings filed – numbered 201 A 04. He referred to the notice of intention to rely on preliminary objection filed on 23/9/2004, argued in his brief which he adopted. He submitted that the reply brief of the appellant was not filed within 14 days from service of the respondent’s brief.

In reply, Mr. Tatama submitted that the rule in Order 6 rule 5 of the Court of Appeal Rules permits a reply to be filed not later than 3 days before the hearing of the appeal.

I will first consider the respondent’s objection to the time of filing the appellant’s reply brief.

Order 6 rule 5 of the Court of Appeal Rules which govern the filing of a reply brief provides as follows:-

Order 6, rule 5: “The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief but not later than three clear days before the date set down for the hearing of the appeal, file and serve or cause to be served on the respondent a reply brief, which shall deal with all new points arising from the respondent’s brief.”

The reply brief challenged was filed on 14/2/2005.

The respondent’s brief incorporating his preliminary objection was filed on 23/9/2004. He also filed a notice of preliminary objection on the same date. Thereafter, the appeal was set down for hearing on 11/1/2005.

The appellants did not file any reply brief within 14 days of the respondent’s brief nor 3 clear days before the hearing date of 11/1/2005 as required by rule 5 (supra). The appeal was however not taken on 11/1/2005 and was further adjourned to 10/2/2005.

On 17/1/2005, the appellants filed a motion, seeking leave of this court to file an amended brief of argument. Leave was granted them on 10/2/2005. The appeal was heard on 22/2/2005. Applying Order 6 rule 5 (supra), there is no doubt that the appellants failed to file their reply brief within time as required by the Rules. This is so, notwithstanding the fact that the appeal was not heard when it was first set down for hearing and was heard on 22/2/2005, based on the appellants’ amended brief. It is noteworthy that the respondent did not file an amended brief but relied on his brief filed on 23/9/2004.

The respondent’s objection is therefore upheld. The reply brief was out of time. In effect, there is no reply brief before this court.

I will now address the notice of preliminary objection filed by the respondent wherein he described all three grounds of appeal as incompetent based on the respondent’s submissions.

Grounds 1 & 2: It was submitted for the respondent that these two grounds are incompetent, being based on the interlocutory decisions, of the court below, they were filed out of time without leave and were embodied in the final appeal without leave of the court. That, by section 25(2)(a) of the Court of Appeal Act, the time for filing appeals against interlocutory decisions is 14 days and that no leave was sought or obtained by the appellants before filing the two grounds of appeal. In his brief of argument, learned Counsel pointed out that the appellants had raised by motion dated 1st June, 2004, preliminary objection as to the jurisdiction of the court to entertain the suit. That the court heard the argument of both counsel on this. That in a well considered ruling, the court below arrived at the decision on 3/6/2004, based on the affidavit evidence and legal authorities to the effect that it had jurisdiction to entertain the suit.

Counsel argued that having given an interlocutory decision the appellant had a right of appeal against that decision within 14 days thereafter by virtue of section 25(2)(a) of the Court of Appeal Act.

He pointed out that the appellants filed their appeal for the final ruling, delivered on the originating summons on 25/6/2004 and included therein these grounds on jurisdiction.

Learned Counsel submitted that when an appellant failed to appeal against an interlocutory decision, he cannot combine an appeal against that with an appeal against the final judgment unless he seeks extension of time within which to appeal against the interlocutory decision. He cited authorities and urged us to strike out the two offending grounds of appeal.

In his reply brief, which has been found incompetent, learned counsel for the appellants Mr. Mahmoud stated that he was relying on facts contained in the record of proceedings which he set out as follows:-

That the issue of jurisdiction and competence was raised in the interlocutory argument and considered in the ruling dated 3/61 2004 on pages 90 – 98 of the records.

The same issue was raised in the argument of the originating summons and considered in the ruling on the originating summons delivered 26/6/2004 on pages 122-155 of the records. The issue is raised in grounds 1 & 2 of the grounds of appeal on pages 156-160 of the records.

For the avoidance of doubt, the issue which the appellants raised in the court below in their final submission to the court below with respect to the originating summons is set out thus:-

“Whether suit No. M/60/04 is competent and or commenced properly as to vest the court in the power with jurisdiction (sic) to determine the guilt having been commenced by way of originating summons instead of writ of summons”. (See his address at page 113 of the records lines 14-17 and the ruling of the court at page 140 lines 11- 14).

To my mind, the court below had, on 3/6/2004, decided the issue of jurisdiction and the commencement of the action in the interlocutory application of the appellants seeking to strike out the suit for want of jurisdiction, (see page 43 of the records). It is the same issue which the parties argued. The court below gave a considered decision. See pages 84 lines 20-23, 85 lines 15-21, for the argument of the appellants in the court below. At page 84 lines 20-23, Mr. Mamza of counsel for the appellants spelt out the issue in his motion submitting thus:

“The issues raised in the application are not questions of interpretation of the provisions of the law cited earlier. It is an issue of controversy, which can only be resolved by way of pleadings and not through originating summons”.

At page 85 lines 15-21, the learned counsel for the appellants in conclusion:

“I want to submit that this court has no jurisdiction to entertain this suit for reasons I have earlier cited. See also, the case of Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) pages 1- 15 paras b-c. On the principle of law which says controversial issues must come by way of pleadings as opposed by originating summons pages 15-16 paras H-A- para. of the same page 20 paras. A-G. para. 17 paras. A-H, para. pages 17-18 paras. HA”(sic).

Mr. Wadzani of counsel for the respondent, replied at pages 85-89 to the foregoing. The gist of his submission was that what the respondent sought in his claim was merely an interpretation of the statutes listed in his originating summons, that he was not challenging the validity of the election, as, a winner of an election, could not approach the election tribunal with a petition. That on the submission that the claim should have been begun by a writ of summons and pleadings, and not by originating summons, that there were no facts in their supporting affidavit to disclose those controversial facts alleged in the case. That therefore, the court below had jurisdiction to hear it.

The court below held that, “what is important is not the mode of commencing an action in court, but whether the court has jurisdiction to entertain the suit”. The learned trial Judge then recounted the substance of the enactment set out in the summons sought to be interpreted and their implications. He considered the affidavit evidence before him and decided that the High Court has the jurisdiction to hear and determine the suit. See pages 95-97 of the records.

The appellants did not appeal against the ruling in this interlocutory application delivered on 3rd June, 2004, at the time. The 14 days allowed by section 25(2)(a) of the Court of Appeal Act to appeal against interlocutory decisions expired by 17/3/2004. I believe it is imperative to state at this point that the issue before the trial court in the motion for preliminary objection was an attack on the jurisdiction of the court below which is a question of law, but which in essence raises a question of competence – See A.G., Lagos v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Times Weekly Law Report 1 at p. 7. These were the questions determined in the ruling of 3/6/2004 on the preliminary objection.

The court below proceeded thereafter to hear argument of counsel for both parties on the originating summons of the respondent. It delivered its final judgment/ruling on the case on 25th June, 2004, and found for the respondent.

On 28th June, 2004, the appellants filed their notice of appeal, the grounds of which have been set out. It is without doubt correct, as submitted by Mr. Wadzani of counsel for the respondent, that the appellants have framed grounds of appeal Nos. 1 and 2 from the matters determined in the decision/ruling on the interlocutory application delivered on 3rd June, 2004. By virtue of the provisions of section 25(2)(a) of the Court of Appeal Act, a party wishing to appeal to the Court of Appeal against an interlocutory decision of the High Court must do so within 14 days from the date of the ruling or with leave of the court within any extended time granted by the court to the party upon an application for such extension, filed by him. Undoubtedly, the appellants were out of time in appealing against the said ruling of 3rd June, 2004, and have neither applied nor obtained leave of the court to file these two grounds of appeal out of time.

For the respondent, it has been urged that this court should strike out the two grounds of appeal raised from the interlocutory decision without leave.

It has become well settled, that an appellant who has failed to appeal against an interlocutory decision within time may combine an appeal there from with an appeal against the final judgment of the court, provided that where the time to appeal against the interlocutory decision/judgment has expired, leave of the appeal court must be sought and obtained. Failure to obtain leave, renders the appeal from the interlocutory judgment incompetent. See Habib Nigeria Bank Ltd. v. Fathudeen Syed M. Koya (1992) 7 NWLR (Pt. 251) 43 at p. 45, Tijani v. Akinwunmi (1990) 1 NWLR (Pt. 125) 237 at pp. 250-251 per Akpata, JCA (as he then was) relying on White v. Witt (1877) 5 Ch. 587 and also p. 252, per Awogu, JCA. See also notes 59/10/19, Supreme Court Practice, 1979 Volume, Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179 SC at p. 195, per Uwais, CJN, also reported in 10 SCNJ 4, cited by learned Counsel for the respondent. Shanu v. Afribank PIc. (2000) 13 NWLR (Pt. 684) 392, Onwe v. Oke (2001) 3 NWLR (Pt. 700) 406 Sc.

In clear terms, the principles have been laid down by our apex courts that failure to obtain the leave of the Court of Appeal where leave is required, renders the appeal incompetent, see Arowolo v. Adimula (1991) 8 NWLR (Pt. 212) 753, Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 262, Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299, Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612 Sc.

In recent years, both the Court of Appeal and the Supreme Court have encouraged and upheld the practice of combining grounds of appeal from interlocutory decisions with those from the final judgment of the court below, as being desirable. For, it saves time and effort on all sides in the dispensation of justice. See Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144, Onwe v. Oke (supra).

The emphasis that leave to appeal out of time if the time to appeal against the interlocutory decision has expired must be obtained with respect to the interlocutory decision, must be noted, see Ogigie’s case (supra).

As no leave has been obtained by the appellants herein, learned counsel for the respondent is in my view, on firm grounds in his submission that grounds 1 and 2 of the grounds of appeal arising from the interlocutory decision included in the final appeal without leave for extension of time with regard to the interlocutory decision should be struck out. They are hereby struck out as incompetent with the issues raised from them.

We are now left with ground 3. This will now be addressed. In this regard, Mr. Wadzani, learned Counsel for the respondent has submitted that neither the appellants nor the respondent raised the issue of abuse of court process at the lower court. That the affidavit evidence did not contain anything on that to which the trial Judge’s attention was drawn. Thus there was no pronouncement thereon.

He submitted that it is being raised for the first time as a fresh issue on appeal and no leave of this court was obtained. That our adjectival law requires that leave of the court be obtained to introduce a new point on appeal. He referred to legal authorities in support. H. Erejinwa II, the Olu of Warri & Ors. v. Kperegbeyi (1994) 4 NWLR (Pt. 339) 416 at 442, Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684, Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159 at 172, Tahir v. Udeagbala Holdings Ltd. (2004) 2 NWLR (Pt. 857) 438 at 447 A-C.

Learned Counsel urged us to also strike out ground 3 as incompetent.

Mr. Mahmoud, learned Counsel for the appellants submitted no argument in his brief of argument on the objection raised by the respondent as to the competence of ground 3 of the grounds of appeal.

Thus, even if his reply brief was competent, he will be taken as having nothing to urge on that objection and will be deemed to admit it. The principles as applied by the courts are that where a fresh issue raised in the respondent’s brief of argument, requiring to be countered, is not addressed and countered in his reply brief by the appellant, the issue so raised remain conceded. See Iro v. Echewendu (1996) 8 NWLR (Pt. 468) 629. Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129, Lori v. Akukalia (1998) 12 NWLR (Pt. 579) 592, Brifina Ltd. v. Inter-Continental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540.

So it is with the objection to the competence of ground 3 of the grounds of appeal raised by the respondent which has not been answered by the appellants in their reply brief. The objection ought to be upheld. Apart from the above, I have myself not found anywhere in the records where the issue being raised in ground 3 was determined in the court below and no leave has been sought and obtained to raise the issue for the first time on appeal. An appeal is a complaint against the judgment of the court below being appealed against and it has become trite law that its basis must relate to the decision of that court from which the appeal lies.

Thus, any grounds of appeal and issues raised on matters outside those relating to the relevant final decision are incompetent. See Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134, (1986) 1 SC 231, Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Pt. 344) 290, A.-G., Anambra State v. Okeke (supra) at p. 619.

However, should an appellant wish to raise any fresh issue for the first time on appeal, the law requires that he applies and obtains leave of the Appeal Court so to do.

It is indeed therefore settled law that any issue not raised in the court below cannot be canvassed on appeal without leave, any ground of appeal raising it is incompetent without leave, see Akpene v. Barclays Bank (1977) 1 SC 47, Fadare v. A.-G., Oyo State (1982) 4 SC 1 at 16-17, Uor v. Loko (1988) 2 NWLR (Pt. 77) 430. This includes raising for the first time the all important and threshold issue of jurisdiction. See Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159 SC at 172, Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 SC, Abdulsalam v. Salawu (2002) 13 NWLR (Pt. 785) 505 at 517, Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612 at 626. See also the following cases relied on for the respondent. Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 SC at 709 per Iguh, JSC and Tahir v. Udeagbala Holdings Ltd. (2004) 2 NWLR (Pt 857) 438 at 447.

The issue of abuse of process of the court raised in ground 3 by the appellants is being raised for the first time on appeal. Without leave of this court, ground 3 of the ground of appeal which raises the issue is bound to be declared incompetent and must be struck out. Ground 3 is therefore struck out.

As the three grounds of appeal have been found incompetent and are struck out, the appeal is incompetent without further ado, this court is bound to terminate the appeal. For, there are no grounds to sustain the appeal.

It is well settled that a court is bound to put an end to the consideration of a matter at any stage, when it becomes obvious that it is incompetent as herein. See A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575 at 618-619 per Iguh, JSC citing Lord Wright in the English case of West Minister Bank Ltd. v. Edwards & Anor. (1942) AC 529 at 536.

The law Lord in that case had this to say:

“Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so of its own initiative even though the parties have consented to the irregularity…”

As a matter of law, I should think that having found all the 3 grounds of appeal, that is to say, grounds 1, 2 and 3 to be incompetent, this court retains no jurisdiction to entertain any further argument thereon.

The issues and arguments arising from the 3 grounds of appeal must therefore be discountenanced.

The grounds of appeal together with the issues distilled therefrom and the arguments proffered thereon are hereby struck out.

The appeal is struck out. There will be no order as to costs.

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Other Citations: (2005)LCN/1732(CA)