Mr. Attie Samuel Wanini-emi V. Mr. Delight Igali & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
The Appellant and the 1st Respondent were candidates in the election conducted by the 6th Respondent on April 14th, 2007 for the Constituency Three (3), Southern Ijaw Local Government Area seat at the Bayelsa State House of Assembly. At the end of the election the 1st Respondent was declared and returned as the winner. Being dissatisfied with the return; the Appellant presented an election petition against same before the National Assembly, Governorship and Legislative Houses Election Tribunal Bayelsa State (to be called Tribunal from now) as required by section 140(1) of the Electoral Act, 2006. However after hearing arguments on an objection raised by the 1st Respondent, the Tribunal struck out the petition on the 19/7/07 on ground of incompetence. An appeal by the Appellant to this court against that decision of the Tribunal was allowed and a trial of the petition on the merit was ordered at the end of which the petition was dismissed by the Tribunal on 15/9/08.
Once again, not satisfied with this last decision of the Tribunal, the Appellant in exercise of the right conferred or vested on him by the Provisions section 246(1)(b)(i) of the 1999 Constitution of the Federal Republic of Nigeria, filed a Notice of Appeal against same on the 4/10/08. For reasons that would appear later in this judgment, it is expedient to set out the contents of the Notice of Appeal (without the parties) which appear at page 175 of the printed record of appeal.
“TAKE NOTICE that the Petition/Appellant being dissatisfied with the decision, more particularly stated in paragraph 5 page 14 of the National Assembly/Governorship and Legislative Elections Tribunal sitting in Yenagoa contained in the judgment dated the day of September, 2008 doth hereby appeal to the Court of Appeal upon the ground(s) set out in paragraph 3 and will at the hearing of the appeal seek the relief(s) set out in paragraph 4.
And the Appellant further states that the names and address of the person directly affected by the appeal are those set out in paragraph 5.
2. PART(S) OF DECISION OF TRIBUNAL COMPLAINED OF:
The whole decision,
3. GROUND OF APPEAL
ERROR IN LAW
The Tribunal erred in law when it held that, “He pleaded several documents, more of which was admitted having failed the test of admissibility under the Evidence Act and the Election. Tribunal and Court Practice Directions 2007″
PARTICULAR(S) OF ERROR
The Tribunal was in error when it refused on the 31/07/08 learned Counsel for the petitioner’s sought for leave to bring a motion to introduce additional documentary evidence not otherwise listed to be relied upon by the Petition before hearing proper commenced.
4. RELIEF(S) SOUGHT FROM THE COURT OF APPEAL:
(a) AN ORDER setting aside the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal dated the 15th day of September 2008.
(b) AN ORDER that leave sought for the amendment of the Petitioner pleading was properly brought, and
(c) AN ORDER that the Documents sought for to be listed by leave of court by way of motion are/were at all times relevant to the issues(s) before the Tribunal and therefore admissible and was timeously brought having sought the leave of , court before hearing properly commenced.”
Briefs of arguments were filed and exchanged by the Appellant and the learned counsel for the 1st Respondent. The Appellant’s undated brief was settled by him and filed on the 22/10/08 while the 1st Respondent’s brief in which a preliminary objection was raised and argued was filed on the 18/11/08. “AN ARGUMENT AGAINST PRELIMINARY OBJECTION” (not dated) was also filed by the Appellant on the 16/2/09. On the 4/5/09 when the appeal was heard, the Appellant personally adopted the Appellants’ brief as well as the argument against preliminary objection. He urged us to allow the appeal and set aside the decision of the Tribunal. Mr. Preye Agedah; learned: counsel for the 1st Respondent adopted the 1st Respondent’s brief and moved the preliminary objection on the competence of the appeal. We were urged by him to uphold the objection and strike out the appeal. In the alternative to dismiss the appeal for lacking in merits.
The 2nd – 6th Respondents who were duly served with the notice of the hearing, were absent and not represented in court on that day. None of them had filed a Respondents brief in respect of the appeal and so had opted to stay out of the appeal.
I would start with the document filed on the 16/2/09 by the Appellant. Though this document did not make reference directly to the 1st Respondent’s notice of preliminary objection as contained in the 1st Respondent’s brief of argument, its intended purpose apparently is to react or respond to that objection. It was therefore meant to answer to the 1st Respondent’s arguments on the preliminary objection and so to be the Appellants’ Reply brief. For whatever reason however, the document or “reply brief” was not filed in accordance with the provisions of Order 17 Rule 5 of the Court of Appeal Rules, 2007 which provide thus:-
The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief, 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 clear and straight forward requirement of the above provisions is that any document or reply brief by an Appellant which is intended to or deals with all new points arising from the Respondent’s brief of argument shall be filed within fourteen (14) days of service of the said brief on the Appellant. Put briefly, a fourteen (14) days time limit was prescribed by the provisions for the filing of the document r Reply brief. As can clearly be seen from the dates of filing, though no date of service of the 1st Respondent’s brief on the Appellant was indicated, the argument against the preliminary objection was filed about three (3) months after the 1st Respondent’s brief was filed. It was undoubtedly filed out side the prescribed period of time under the above provisions of the Rules of court and there is no record of an application for or an order of court enlarging the time within which it was to be filed. These Rules are meant and made for the orderly and expeditious disposal of matters filed before the court, particularly election appeals about which time is of great essence. They should not be ignored by or left at the whims, indolence or even ignorance of the parties or their counsel in the determination of appeals before the court. Ignorance or deliberate non compliance with the Rules of court, as may be the case here, cannot or better, should not be treated as a mere irregularity in the name of mistake or inadvertence of counselor party. The Rules of court are to strictly be complied with and obeyed substantially if they are to serve the primary purpose for which they were made pursuant to the power drawn from the provisions of section 248 of the Constitution of the Federal Republic of Nigeria, 1999. Be that as it may, for being filed out of the prescribed limit of time in the above provisions of the Rules, the argument against preliminary objection is incompetent and would be discountenanced in the determination of objection as well as the appeal.
In line with practice and the law, I intend to consider the 1st Respondent’s Preliminary objection first. A determination of the objection is expedient since its object is to terminate or determine the proceedings in the appeal at the state it was raised. If it succeeded therefore, the need for further steps in the appeal would abate automatically having been over taken by that event. GOJI V. EWETE (2001) 13 NWLR (Part 736) 273 at 280; ANPP V. R.O. ABSSD (2003) 6 NWLR (Part 920) 140; ADELEKAN V ELU-LINE NV (2006) ALL FWLR (Part 321) 1213 at 1231.
The preliminary objection raised by the learned counsel for the 1st Respondent is that the Appellants’ sole ground of appeal as contained in the Notice of Appeal is incompetent on the following grounds:-
“(1) that under section 241(a) and (b) and section 242(1) of the 1999 Constitution it in mandatory to obtain leave of court for an appeal against interlocutory decision or where the grounds are on mixed law and facts as in the present appeal.
(2) that the time limited for filing the appeal had lapsed when the appeal was filed.”
The submissions of learned counsel are to the effect that a community reading of the ground of appeal along with the particulars thereof shows clearly that the Appellants’ complaint is against the exercise of the Tribunals discretion ill relation to the Application for leave to apply to list and tender documents not previously listed in the petition. That the particulars of the ground of appeal relate to the ruling of the Tribunal delivered on the 31/7/08 which point was put beyond doubt by the sole issue formulated by the Appellant for determination in the appeal. Reference was also made to the Appellants statement of facts at page 2 of the Appellant’s brief of argument on the fact that the ground of appeal challenges the Tribunal’s ruling dated 31/7/08. It was further argued that for being against an interlocutory decision, the ground and appeal required he prior leave of court to be competent more so since the ground is one of mixed law and facts being one against the exercise of the Tribunals discretion. For the absence of the leave of court, it was contended that the ground of appeal is incompetent on the authority of KHALIL V. YAR’ADUA (2004) ALL FWLR (part 225) 111 at 138 and OLOSUNDE V. EYIALEGAN (2005) ALL FWLR (Part 242) 503 at 511-2. In addition it was submitted that since the ruling against which the ground of appeal complaints was delivered on the 31/7/08 the appeal was filed out of the time limit prescribed in the Practice Directions No.2 of 2007 and section 24(2)(a) of the Court of Appeal Act, 2004 because it was filed on the 4/10/08. In the absence of leave to appeal out of time the ground of appeal is rendered incompetent, argued learned counsel since it is a condition precedent to the validity of the ground. The cases of OGIGIE V. OBIYAN (1997) 10 SCNJ 1 at 15; GWANDU V. GWANDU (2004) ALL FWLR (Part 229) 841 at 862 and R.E.A.N. V. ANUMNU (2004) ALL FWLR (Part 207) 611 at 634-5 were relied for the submissions. Lastly it was said that the issue raised by the Appellant for being from an incompetent ground of appeal is also incompetent. Reliance was placed on page633 of the R.E.A.B.V. ANUMNU (supra) and we were urged by learned counsel to strikeout the appeal in its entirety for being incompetent.
Since the argument against the preliminary objection filed by the Appellant on 16/2/09 has been struck out, there are no live submissions from the Appellant on the objection to be considered in the determination thereof. The absence of a reply or reaction to the objection on the part of the Appellant does not however mean that the objection by the 1st Respondent would succeed automatically. Even in such situations, the court still has a duty to consider whether or not the objection is valuable and sustainable in law AGBA BIAKA V. OKOTIE (2004) 15 NWLR (Part 897) 503 at 522.
Now, the first ground upon which the objection was premised is that the sole ground of appeal was a challenge on an interlocutory decision of the Tribunal contained in the ruling delivered on the 31/7/08. There is no contest between the parties that the ruling in question was delivered in respect of a motion filed on 23/7/08 before the hearing or trial of the petition on the merit ordered by this court commenced. This was in line with the provisions of paragraph 6(1) of the Election Tribunal and Court Practice Directions, 2007 which say:-
“6. Motions and Applications:
1. No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or Court.”
The ruling was clearly delivered at the pre-hearing session stage and undoubtedly therefore, an interlocutory decision in the proceedings of the Tribunal in respect of the Appellant’s petition. The learned counsel for the 1st Respondent is right in law and so I agree with him when he submitted that the Appellant is/was entitled to incorporate a ground of appeal against the interlocutory decision in the appeal against the final decision/judgment of the Tribunal. To enable him do that however, he has to satisfy certain conditions which are precedent to the validity of the grounds of appeal against the interlocutory decision. They are:-
“(a) obtain the leave of the court where the ground involves question of facts or mixed law and fact and;
(b) Where the time limit prescribed for the filing of the appeal had expired;
(i) apply for enlargement of the time to apply for leave;
(ii) apply and obtain leave to appeal out of time and
(iii) apply for and obtain enlargement of time within which to appeal.”
See OWENA BANK PLC V. N.S.E. LTD. (1997) 8 NWLR (Part 515) 1, AJAYI V. OJOMO (2000) 8 NWLR (Part 668) 197; KHALIL V. YAR’ADUA (supra); OKEKE V. PETMAG NIG. LTD (2005) 4 NWLR (part 915) 245; IDRIS V. AUDU (2005) 1 NWLR (part 908) 612. The law is settled that leave is not required for an appeal against an interlocutory decision where the grounds involved questions on issues of law alone. See NAWL (NIG.) LTD V. SPDC LTD (2004) 6 NWLR (Part 869) 286; GOVERNOR KWARA STATE V. GAFAR (1997) 7 NWLR (Part 511) 51. It may be recalled that I have stated that the reason for setting out the contents of the Notice of Appeal would appear in the judgment. A cursory look at the notice given by the Appellant on the Notice of Appeal shows that he was dissatisfied with the decision of the tribunal contained in the judgment dated the 15/9/08. This judgment was the final judgment of the Tribunal after the hearing on the merit.
The ground of appeal complained of an alleged error in law by the Tribunal when it held that the Appellant pleaded several documents which failed the test of admissibility: However the particulars supplied to ossify the ground of appeal are entirely on the decision contained in the ruling delivered on the 31/7/08 at the pre-hearing session. Put another way, the particulars which are supposed to supply fleshly facts that would demonstrate the alleged error in law on the part of the Tribunal, deal with a decision that as delivered before the hearing which eventually resulted in the judgment appealed against.
The ground and its particulars deal with different and separate the decisions at distinct stages of the proceedings in the Appellants’ petition. The two consequently have no relationship whatsoever except that they were delivered by the Tribunal in the petition. The issues decided in the two decisions are completely different that one had no bearing on the other as far as the appeal is concerned. The principle of law is that in no way should the particulars of a ground of appeal be independent complaints from the appeal itself but should be auxiliary to it. See KHALIL V. YAR’ADUA (supra) at 137. The confusion and uncertainty was compounded by the lone issue formulated by the Appellant in his brief of argument as one calling for determination in the appeal. The issue which is at paragraph 3 on page 2 of the Appellant brief is in the following terms:-
“Whether the Tribunal exercised its discretion judiciously and judicially when it refused leave sought by the Petitioner/Appellant to bring a motion to introduce additional documentary evidence not otherwise listed to be relied upon by the petitioner before hearing proper commenced”
This issue leaves no doubt that the primary grievance or complaint of the Appellant is against the decision contained in the ruling delivered by the Tribunal on the 31/7/08. The issue was not decided at the hearing of the petition the end product of which was the judgment delivered on the 15/9/08 against which the notice and ground of appeal was filed by the Appellant. As a result, the issue raised by the Appellant did not enure from the ground of appeal against the decision delivered on the 15/9/08. There is no ground of appeal against the ruling delivered on the 31/7/08 in which the Tribunal exercised the judicial discretion about which the Appellant complains in the issue formulated by him. From the record, the Appellant did not indicate on the Notice of Appeal that he was dissatisfied with the decision contained in the ruling delivered on the 31/7/08 and that he was appealing against it. In the absence of a valid ground of appeal, the issue submitted by the Appellant has no basis or foundation to provide it the necessary competence for it to be a live issue for determination in this appeal. In simple words, the issue raised by the Appellant is incompetent because it did not arise from the ground of appeal filed.
In addition, the ground of appeal standing alone without particulars does not clearly disclose what the complaint or attack is against the ratio decidendi of the decision appealed against. The ground on its own is in vague and general terms such that it does not give adequate notice of the precise nature of the Appellant’s complaint against the decision of the Tribunal dated 15/9/08. Under the provisions of Order 6 Rule 3 of the Court of Appeal Rules, 2007 the ground is one which in my firm view does not disclose a reasonable ground of appeal and is therefore not permitted for being incompetent. It is liable to be struck out. ETALUKU V. NBC PLC (2004) 15 NWLR (part 896) 370; IMAM V. SHERIFF (2005) 4 NWLR (Part 914) 80 NWABUEZEV. NWORA (2005) 8 NWLR (part 926) 1. Furthermore, since the single issue formulated by the Appellant has been found not to have arisen from the ground of appeal, and incompetent there is no valid issue derived from the said ground for determination in the appeal. In other words, the Appellant did not distill a competent issue from the ground of appeal for determination in the appeal and so the ground is deemed in law to have been abandoned by him.
In the final result, for the reasons aforementioned, I find merit in the preliminary objection by the 1st Respondent to the competence of the ground of appeal. I uphold the objection and find the 1st Appellants’ appeal incompetent. This court being the final court in this election matter, with the success of the preliminary objection on the competence of the appeal, the duty to consider the merit of the appeal has abated. UBN V. SOGUNARO (2006) 16 NWLR (part 1006) 504 at 521-2, in addition to the other cases cited on the point earlier on. The appeal is struck out for being incompetent.
There shall be N30,000.00 costs in favour of the 1st Respondent.
Other Citations: (2009)LCN/3311(CA)
