Chief Imeh Albert Akpan V Senator Effiong Bob & 4 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C. 

The plaintiffs at the Federal High Court, Abuja (trial court) took out an originating summons against the defendants. In the in support of the originating summons, the 1st plaintiff, who with the consent of the 2nd plaintiff, deposed to the facts contained in affidavit in support which furnishes a summary of the facts from their own side. He averred that he is a card-carrying members of the Peoples Democratic Party (PDP) while the 2nd plaintiff is the Akwa Ibom State Chairman of the PDP 1st plaintiff indicated his interest to contest the party’s primary election into the Akwa Ibom North East District Senatorial Senatorial Seat as a candidate in the April, 2007 General Elections into the National Assembly. In realization of that ambition, the 1st plaintiff obtained and filled the relevant party’s nomination forms and return same. He was cleared to contest the said primaries which took place on or about 4th-6th December, 2006 in compliance with PDP’s Constitution. 1st plaintiff averred further that he scored over 60% of the total votes cast and was duly returned as the winner and the party’s candidate in respect of the April, 2007 General Elections. PDP issued him with a Certificate of Return. PDP subsequently proceeded to forward 1st plaintiff’s name to the 1st defendant. 1st plaintiff was invited by the 1st defendant for verification of PAG screening exercise at the instance of PDP.

He was screened by the 1st defendant on the 21st February, 2007 and that he was advised by the 1st defendant that his name had been included in the list of candidate for the National Assembly election in April,2007 General Elections, representing the PDP in Akwa Ibom North-East Constituency. 1st plaintiff averred severally that he was given all the assurances by the PDP’s Akwa Ibom Chairman and PDP’s National Chairman (Dr.) Ahmadu Ali that he was the unequivocal candidate of the PDP in the National Assembly Election holding in April, 2007 in respect of Akwa Ibom North-East Constituency.

But to the surprise of the 1st plaintiff the 1st and 2nd defendant unilaterally removed his name from the list of candidate for he National Assembly elections and in a strange manner replaced it with the name of the 3rd defendant 1st plaintiff averred that the exclusion of his name from the INEC list of candidates for the April, 2007 election is completely in bad faith and the 1st and 2nd defendant never wrote to him or the PDP to explain why his name was excluded from the list. This, principally, was what compelled the plaintiffs to take out the originating summons for the trial court to determine the following question:

1. “whether having regard to the clear provision of section 65 and 66 of the Federal Republic of Nigeria, 1999 the 1st plaintiff is qualified to contest election into the Senator of the Federal Republic of Nigeria.
2. whether as a member of the People Democratic Party and having contested the primaries of the said Party’ seeking nomination as the Party’s candidate for the April, 2007 General Election in respect of Akwa Ibom North East Senatorial District, and having polled over 60% of the total votes cast at the said primaries which led to his being declared as the winner of the said primary election consequently issued with a certificate of Return by the People Democratic Party directing the 1st and 2nd defendant to list the 1st plaintiff as its candidate for the National Assembly Elections in respect of Akwa Ibom North East Senatorial District Constituency, the 1st defendant is at liberty not to enforce the directive of the Party’s Senatorial candidate in Akwa Ibom North East for the April, 2007 General Elections, having regard to the relevant provision of the Election Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
3. whether in the face of the several representation/correspondent made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the name of the 1st plaintiff be placed on the list of the National Assembly candidate with the 1st defendant as the Peoples Democratic Party’s candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Election, the 1st defendant is at liberty to decline the enforcement of such directives having regard to the clear provision of the Election Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
4. whether in the absence of any positive explanation from the 1st defendant, having regard to the several representations made by the Peoples Democratic Party on behalf of the 1st plaintiff to be the 1st defendant demanding that the 1st plaintiff’s name be placed on the list of the National Assembly candidates, the 1st defendant is at liberty to remove the name of the 1st plaintiff unilaterally after having screened him and verified his credentials, having regard to the relevant provision of the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
5. Whether the omission, substitution or removed of the name of the 1st plaintiff by the 1st defendant from the list of National Assembly candidates dated 15th March, 2007 to contest election into the Senate of the Federal Republic of Nigeria, particularly as representing Akwa Ibom North East Senatorial District in the April, 2007 General Election does not constitute a gross violation of the 1st plaintiff’s constitutional right to fair hearing, and by extension his right to contest election into the Senate of the Federal Republic of Nigeria as a Nigerian citizen, having regard to the clear provision of the Election Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
6. Whether in the light of the fact that the Peoples Democratic Party had submitted the name of the 1st plaintiff for substitution with the name of the 3rd defendant by several correspondences, the 1st and 2nd defendant can validly decline such substitution, having regard to the election act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
7. Whether in view of the clear provision of the Electoral Act, 2006, the 1st and 2nd defendant are in a position to decline to act upon the representation of a political party vis-à-vis its choice of candidate to contest for an office in the April, 2007 General Elections more so when the candidate is not otherwise disqualified. The plaintiffs prayed the trial court for the following reliefs:
8. “A declaration that the omission of the name of the 1st plaintiff by the 1st and 2nd defendants in the list of candidates for National Assembly General Election dated 15th March, 2007 particularly as it affects Akwa Ibom North East Senatorial District constitutes a gross violation of the 1st plaintiff’s constitutional rights.
9. A declaration that the refusal of the 1st defendant to comply with the several directives issued by the 1st plaintiff’s political party i.e. Peoples Democratic Party to the effect that the 1st plaintiff’s name be listed as its candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Election constitutes a wrongful and unlawful removal/substitution or exchange of a validly nominated candidate i.e. the 1st plaintiff.
10. A declaration that the inclusion of the 3rd defendant’s as the Peoples Democratic Party’s candidate representing Akwa Ibom North East Senatorial District in the fourth-coming April, 2007 General Election is wrongful as it is against the position, wishes and aspirations of the Peoples Democratic Party.
11. An order setting aside the inclusion of the name of the 3rd defendant in the list of the National Assembly candidates for the April, 2007 General Election for Akwa Ibom North East Senatorial District.
12. An order of mandatory injunction directing the 1st and 2nd defendant to forth with place the name of the 1st plaintiff on the list of candidates for the April, 2007 National Assembly General Election as the candidate representing the People Democratic Party in Akwa Ibom North East Senatorial District in the said election.
13. An order of perpetual injunction restraining the 1st and 2nd defendant from further removing the candidature of the 1st plaintiff as the candidate representing Akwa Ibom North East Senatorial District on the platform of the People Democratic Party in the said election.
14. An order of perpetual injunction restraining the 1st and 2nd defendant from placing the name of the 3rd defendant on the ballot for the forth coming election into the National Assembly as the candidate representing Akwa Ibom North East Constituency on the platform of the Peoples Democratic Party in said election.”

After the parties filed all the necessary processes such as affidavits in support and counter-affidavits, written addresses etc, learned counsel for the respective parties adopted their written addresses before the trial court on the 2nd day of April, 2007. The suit was adjourned to the 18th of April, 2007 for judgment and judgment was indeed delivered promptly on that date by Nyako, j. In the judgment, the learned trial judge found in favour of the 1st plaintiff, who is the appellant herein. She granted declaration as per reliefs 1, 2 and 3 and made orders as per reliefs 4, 5, 6 and 7, directing, among other things, that the 1st defendant to include the name of the 1st plaintiff as the candidate of the party in place of that of the 3rd defendant. Dissatisfied with the judgment of the trial court, the 3rd defendant, as appellant, appealed to the Court of Appeal holden at the Abuja Division ( court below). In its judgment which it delivered on the 30th day of March, 2009 the court below set aside the trial court’s judgment and declared the 3rd defendant (who is the 1st respondent herein) as the candidate of the party.

The 1st plaintiff, who is now appellant in this appeal was aggrieved with the judgment of the court below and now appealed to this court on nine grounds of appeal. In this court, parties filed and exchanged briefs of argument. Learned counsel for the appellant S.E. Umoh. Formulated the following issues for determination by this court;

1. “Whether it was proper for the Court of Appeal to have countenanced and considered “arguments” in support of issue No.2 as formulated by the main appellant when the said argument had been struck out along with issue No.3 same having been argued together, (distillable from ground 1).
2. Having resolved issue No.1 in the main appeal before the Court of Appeal in favour of the 1st respondent and having struck out all argument in support of issues Nos. 2 & 3, was the Court of Appeal right in not dismissing the main appellant’s appeal. (distillable from ground 2& 3)
3. Was it proper for the Court of Appeal to have entertained the 5th respondent’s/cross appellant’s issue No.1 when: [a] it did not arise from the decision of the trial court and [b] the decision of the trial court that none of the parties raised the issue of cogent and verifiable reason was not appealed against and [c] The 5th respondent/cross appellant never sought let alone obtained leave to raise a fresh issue on appeal. (distillable from ground 5)
4. What is the effect of the Notice of withdrawal of appeal filed by the 5th respondent/cross appellant on its appeal (distillable from 4, 6 and 7) 5. Was it proper for the Court of Appeal to have ignored the Notice of Withdrawal of appeal filed by the 5th respondent/cross appellant and proceed to enter judgment in favour of the 5th respondent (distillable from ground 8 and 9) Learned senior counsel for the 1st respondent, Chief A.E. Assam, formulated the following issues: 1.

“Whether it was proper for the Court of Appeal to have countenanced and considered “argument” in support of issue No.2 as formulated by the main appellant when the said argument had been struck out along with issue No. 3, same having been argued together.

2. Having resolved issue No.1 in the main appeal before the Court of Appeal in favour of the 1st Respondent and having struck out all argument in support of issues nos.2 and 3 was the Court of Appeal right in not dismissing the main appellant’s appeal”

The learned SAN filed a Notice of Preliminary Objection which he set out and argued in the brief of argument. ( I shall consider this objection later). Learned Senior Counsel for the 2nd respondent Dr. A. A. Izinyon, who also filed a Notice of Preliminary Objection; incorporated and argued it in his brief of argument. ( I shall re-visit it later). He formulated the following issues for determination:

1. “Whether it was proper in the circumstance of this case for the learned Justices of the Court of Appeal having struck out issue 3 as formulated by the 1st respondent and all argument related thereto, to proceed to determine argument in respect of issue 2 which was also arguments canvassed in support of issue 3 which was struck out. (Encompassing grounds 1 and 2 of the Notice of Appeal).
2. Whether it was right for the Learned Justices of the Court of Appeal not to have dismissed the 1st respondent appeal having resolved issue 1 in favour of the appellant and struck out 1st respondent’s issue 3 and all argument in its support. (Encompassing grounds 3 of the Notice of Appeal).
3. Whether the learned Justices of the Court of Appeal were right in determining the 5th respondent issue 1 in its cross appellant’s brief of argument in the court below. (Encompassing grounds 5 of the Notice of Appeal).
4. Whether considering the fact and circumstances surrounding the Notice of withdrawal of appeal purportedly filed by the 5th respondent, the learned Justices of the Court of Appeal were right not to have countenanced and given effect to it, (Encompassing grounds 4, 6, 7, 8 and 9 of the Notice of Appeal).”

Learned counsel for the 3rd and 4th respondents, filed a Notice of Preliminary Objection which he argued in his brief of argument. (I shall come back to it later). The following issues were set out in his brief:

1. “Whether the Supreme Court ought to reverse the judgment of the lower court merely because the lower court having initially struck out issue 3 as irrelevant later proceeded to consider the merit of argument in support of issue 2 argued jointly therewith when the latter is competent and capable of independent understanding
2. Whether the cross appeal of the 5th respondent in the lower court after being heard on the merit upon argument by all counsel on record could be deemed withdrawn merely based on a purported Notice of Withdrawal subsequently filed by a solicitor not on record and who never brought same to the attention of their Lordship
3. Whether the lower court erred in overruling the appellants objection to the competency of issue 1 in 5th respondents cross appeal as a fresh issue when same was argued based on a ground of appeal flied and argued by 5th respondent with leave earlier granted by the lower court, especially when the ground complained of raises no fresh issue?”

Learned counsel for the 5th respondent Chief O. Oke, formulated the following issues for our determination:

i. “Whether the failure of the lower court to countenance the notice of withdrawal of appeal filed by the 5th respondent was proper.

ii. Whether it was proper for the lower court to have countenanced and considered argument in support of issue 2 as formulated by the main appellant (1st respondent) in this appeal, when the said argument had been struck out or urged to be struck out along with issue No.3 same having been argued together.”

It is instructive to note that the 2nd respondent herein, filed a Notice of Cross-appeal. It contained four grounds of the cross-appeal. I prefer to delay consideration of this Cross-appeal to the end of my treatment of the objections raised by some of the respondents and of course the main appeal. The various Notices of Objections filed by the 1st, 2nd, 3rd and 4th respondents were premised on different grounds. I shall set out each as couched by the respective parties: 1st Respondent: ‘Take Notice, that before or at the hearing of the appeal to which this application relates, 1st respondent herein will, by way of preliminary objection, pray the Honourable Court to strike out the appellants issues 1 and 2 canvassed for determination in the appeal for being incompetent. AND FURTHER TAKE NOTICE THAT the Grounds upon which the preliminary objection is founded is that:

Issues for determination in an appeal must be distilled from the grounds of appeal filed in the Notice of Appeal and must arise from the actual proceedings which formed the basis of the courts decision appealed against.

PARTICULARS:

1. The said issues do not arise and are not distillable from the grounds of appeal filed by the appellant.
2. The said issues are based on fallacy, to wit: that the Court of Appeal struck out the arguments in issue number 2 in the main appellants brief and failed to dismiss the appeal based on those arguments, when no order striking out or discountenancing the arguments in respect of the said issue was ever made by the Court of Appeal.
3. The said issues do not represent the factual situation in the proceedings in that the Court of Appeal after striking out issue number 3 on the basis of the present appellants objection stated thus at page 1100 paragraph 3 of the printed records of proceedings: Issues 2 and 3 formulated by the appellant were argued together.

Before now, issue 3 had been struck out given the success of the 1st plaintiff’s preliminary objection attacking the same. I will therefore limit myself to submissions in the appellants brief that relate to issue 2.’ 2nd Respondent:

‘TAKE NOTICE that at the hearing of the appeal, the 2nd respondent shall raise objection to the competence of issue 2 of the appellants Brief of Argument and grounds 4, 5, 6, 7, 8 and 9 of the Notice of Appeal and shall respectfully urge this Honourable Court to strike out the said issue 2 and all arguments in respect thereto, grounds 4, 5, 6, 7, 8 and 9 of the Appellants Notice of Appeal together with all the issues formulated therefrom and the argument in support.

GROUNDS OF THE OBJECTION

1. The Appellants issue 2 does not arise from grounds 2 and 3 of the Appellants Notice of Appeal.
2. The Appellants grounds 4, 5, 6, 7, 8 and 9 of the Notice of Appeal do not relate to or arise from any decision of the court below.’ 3rd and 4th Respondents:

‘TAKE NOTICE that the 3rd and 4th Respondents shall at the hearing of the appeal raise a preliminary objection to the competence of grounds 4, 6, 7, 8 and 9 of the Notice of Appeal and issues 1, 2, 4 and 5 of the Appellants brief and shall urge the Supreme Court to strike out same.

GROUNDS FOR THE OBJECTION

1. The appellants ground 4 does not arise from or relate to any decision of the court below;
2. The appellants ground 6 does not arise from or relate to any decision of the court below;
3. The appellants ground 7 does not arise from or relate to any decision of the court below;
4. The appellants ground 8 does not arise from or relate to any decision of the court below;
5. The appellants ground 9 does not arise from or relate to any decision of the court below;
6. The appellants issue 1 does not arise from ground 1 in the Notice of Appeal from which it is purportedly distillable
7. The appellants Issue 2 does not arise from grounds 2 and 3 In the Notice of Appeal from which it is purportedly distillable:
8. The appellants issue 4 is based on an incompetent grounds 4, 6 and 7 in the Notice of Appeal, and
9. The appellants Issue 5 is based on incompetent grounds 8 and 9 in the Notice of Appeal.’

As much as it is possible, I will, for the sake of convenience, marry and summarise the arguments put forward by the parties in the above objections. 1st respondent attacked the competence of issues 1 and 2 for determination. 2nd respondent attacked in the same manner issue 2. 3rd and 4th respondents attacked the competence of issues 1, 2, 4 and 5 of the appellants brief. 2nd respondent attacked as well, the competence of appellants grounds of appeal Nos. 4, 5, 6, 7, 8 and 9. 3rd and 4th respondents attacked equally, the competence of appellants Grounds of Appeal Nos. 4, 6, 7, 8 and 9. I will consider the competence of Grounds 4, 5, 6, 7, 8 and 9 of the Grounds of Appeal before treating the competence of the issues. The main challenge against these grounds by both 2nd, 3rd and 4th respondents is that these grounds of appeal did not arise from the judgment of the Court below. Grounds 4, 6, 7, 8 and 9, it is argued, relate to a Notice of withdrawal of Appeal purportedly filed by the 5th respondent in the court below. There was no pronouncement by the court below whatsoever on the purported Notice of withdrawal of appeal on the basis upon which the appellant appealed under the said grounds. On ground 5 of the Notice of Appeal, it is argued that same does not relate or arise from the judgment of the court below and that it should have directly and concisely been tailored against the findings of the court below on the issue that the appellants preliminary objection was belatedly raised as same should have been raised when the 5th respondent sought leave to file the grounds of its cross-appeal. This is not what ground 5 of appellants Notice of appeal is challenging.

The cases of Adekesola v. Akunde (2004) 12 NWLR (Pt.887) 295 at 311 E and Finnih v. Umade (1992) 1 NWLR (Pt.219) 511 at 534B. This court is urged to strike out these grounds of appeal. Learned Senior counsel for the 1st respondent made his arguments on the preliminary objection in his brief of argument. His arguments centered principally on the competence of issues Nos. 1 and 2. He contended that the complaint of the appellant is anchored on the factual situation and pronouncement of the Court of Appeal that arguments on issue NO.2 were struck out and having so struck out the said arguments, the Court of Appeal erred in giving any legal consideration to materials which were no more before the court upon which to premise its judgment and that led to a miscarriage of justice. Learned senior counsel for the 1st respondent submitted that at no time during the proceedings or in its judgment did the Court of Appeal strike out the said issue number 2 and/or the arguments articulated by the appellant in support. There is also no doubt that the issue did not arise from the ground of appeal as couched nor did it arise as a true issue from the judgment of the Court of Appeal against which, this appeal is brought It is at large he argued further.

It is contended that issue No.1 does not flow from ground one, which it purports to flow from because it states the exact antithesis of the passage of the judgment set out in the ground. He argued further that it is clear that having struck out issue 3, and discountenanced all arguments in its support and limited themselves to those submissions that related to the issue not struck but, the Justices of the Court of Appeal did not strike out arguments in support of issue 2. The case of FMBN V. NDIC (1999) 2 NWLR (Pt.591) 339 was cited in support. Learned senior counsel urged that as the issues submitted for determination did not arise from the grounds of appeal and the factual pronouncements of the Court of Appeal and are fallacies which cannot ground the arguments proffered by the appellant, they are incompetent and should be struck out. Learned counsel for the appellant in response to the points raised in the objection by the 1st respondent submitted that it is trite law that the main purpose of formulating issues for determination is to enable the parties determine the real questions in controversy as shown in the grounds of appeal. Sha v. Kwan (2000) 8 NWLR (Pt.670) 685 was cited in support. He argued further that the Supreme Court will examine the issue raised and where appropriate, to meet the ends of justice, reframe same in order to determine the real question in controversy between the parties. He referred to the case of Agbakoba v. INEC (2008) 8 NWLR (Pt.1119) 489 at 553-D. He made further submissions that examining the grounds of appeal, there is no doubt the case which the appellant presented for determination of the court which is that the Court of Appeal having struck out issue 3 and discountenanced the argument thereon, not having arisen from any of the grounds of appeal, ought to have equally applied similar treatment to issue 2 as it was argued along with the incompetent issue 3, argument in support of which was discountenanced.

Learned counsel for the appellant submitted on the objection on issue 2 that the appellant is contending the legal effect of striking out argument in support of issue 3, which was presented along with issue 2 and that there was no further argument available for the consideration of the Court of Appeal. Learned counsel urged this court to find nothing wrong with the manner in which the issues were formed otherwise, the court is urged to invoke the powers of an appellate court in the presentation of issue for determination which was well articulated. Several cases were cited including DPCC Ltd. v. BPC Ltd (2008) 4 NWLR (Pt.1077) 376 at 396 – 397; 418 – 419. He urged this court to reframe same. Learned counsel submitted that the case of FMBN v. NNDC (supra) cited by the 1st respondent does not support 1st respondents argument.

On the issue of whether it was right for the court to sift competent from incompetent arguments, learned counsel submitted that it is not whether or not a particular judge can sift the competent from the incompetent arguments, but whether on a calm and dispassionate appraisal of the arguments presented, legitimate severance could be reasonably and objectively attained. Learned counsel submitted that the decisions in Ngige v. Obi (2006) 14 NWLR (Pt.999)1 and Ayabgu v. Aqu (1998) 1 NWLR (Pt.532) 129 are not dissimilar with the present case and that is the more reason why there should be no attempt at sifting of the issues having regard to the facts of case. The learned counsel for the appellant made copious submissions on miscarriage of justice as there was no fair hearing on the matter of sifting the arguments on issues 2 and 3 as it cannot rightly be argued that the original argument in the brief at the Court of Appeal sufficed. He cited the case of Edibo v. State (2007) 13 NWLR (Pt.1051) 306 at 331 -1 332 H – D. PAGE| 10 Now, from the totality of the Notices of Objections filed and argued by almost all the respondents, they all aim at either: i. Attacking the competence/validity of some of the grounds of appeal filed by the appellant and or, ii. Attacking the competence/validity of the issue(s) formulated by the appellant for the determination of the appeal. The grounds of Appeal isolated for attack are Nos. 4, 5, 6, 7, 8 and 9. Permit me My Lords, to set out hereinbelow, seriatim, these grounds shorn of their particulars, from the Notice of Appeal filed by the appellant at the court below on the 27th day of April, 2009.

“GROUND 4

ERROR OF LAW

The learned justices of the Court of Appeal erred in law when inspite of the Notice of withdrawal of appeal filed by the 5th cross appellant they proceeded to entertain and allow the appeal.

GROUND 5

The Court of Appeal erred in law and acted in excess of its jurisdiction by entertaining the 5th respondent/cross appellants No. 1 which did not come before it by due process of law.

GROUND 6

ERROR OF LAW

The learned justices of the Court of Appeal erred in law and acted in excess of their jurisdiction when they held thus:

‘The partial success of the cross-appeal of the 5th respondent (i.e. PDP) which strikes at the very or primary finding of the lower court therefore must result in the cross-appeal being allowed with the consequence that the declarations and reliefs granted the 1st plaintiff/1st respondent/1st cross-respondent by the lower court, particularly, the directive issued to the 1st defendant (now 3rd respondent) predicated on the wrong findings that there was proper substitution, must be set aside.’ G

ROUND 7

The learned justices of the Court of Appeal erred in law when they entered judgment in favour of the 5th cross appellant when; a) The 5th cross appellant had withdrawn its appeal b) The only thing the court could do with respect to the said appeal was to formally dismiss it. And this occasioned a miscarriage of justice.

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SC. 135/2009