Mr. Cyril Fasuyi & Ors V. Peoples Democratic Party & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

By a motion on notice dated 24th March, 2017 and filed on the 27th March, 2017, the Appellants/Applicants seek for the following reliefs: –

1. Extension of time within which to seek leave to appeal against the judgment of the Court of Appeal delivered on the 16th May, 2016 in Appeal no. CA/A/296/2015 on grounds other than Grounds of Law alone, in Grounds 3, 4, 5, 6 and 9 of the Applicants notice of appeal filed on the 25th day of July, 2016.
2. Extension of time within which to seek leave to raise and argue new points in this appeal as contained in Grounds 1 and 2 of the Applicants’ notice of appeal filed on the 25th day of July, 2016.
3. Leave to appeal against the judgment of the Court of Appeal delivered on the 16th day of May, 2016 in Appeal No. CA/A/296/2015 on grounds other than Grounds of Law alone in Grounds 3, 4, 5, 6 and 9 of the Applicants’ notice of appeal in this appeal.
4. Leave to raise and argue new points in this appeal as contained in Grounds 1 and 2 of the Applicants’ notice of appeal, which new points have already been

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argued in the Appellants’/Applicants’ brief of argument already filed in this appeal.

5. Extension of time to appeal against the judgment of the Court of Appeal delivered on the 16th May, 2016 in Appeal No. CA/A/296/2015 on grounds other than Grounds of Law alone and on new points raised for the first time in this appeal.
6. Deeming as properly filed and served the Notice of Appeal already filed within time on the 25th day of July, 2016 in this appeal containing the said Grounds of mixed Law and facts and the new points.
7. Deeming as properly filed and served the record of appeal and the Appellants/Applicants’ brief of argument wherein the said Grounds of mixed Law and facts and the new points in Grounds 1 and 2 of their notice of appeal have already been argued.

The grounds upon which this application is made are enumerated immediately after the prayers as follows: –

1. That Grounds 3, 4, 5, 6 and 9 of the Appellants/Applicants Notice of Appeal raise question of mixed law and facts.
2. Grounds 1 and 2 of the Appellants/Applicants Notice of Appeal are new issues which did not arise at the Court of Appeal and are

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sought to be raised by the Appellants/Applicants’ for the first time before this Honourable Court.

3. The new points of law sought to be raised are substantial and no additional evidence would be adduced in support of the new points.
4. The said Grounds of mixed law and facts have already been argued in the Appellants/Applicants’ Brief of Argument.
5. The said new issues in Grounds 1 and 2 of the Appellants’ Notice of Appeal have already been argued in the (sic) as issue No. 1 in the Appellants/Applicants’ Brief of Argument.
6. The Appellants/Applicants’ require leave of this Honourable Court to file and argue Grounds of mixed Law and facts.
7. The Appellants/Applicants’ require the leave of this Honourable Court to raise and argue the said new points before this Honourable Court.
8. A refusal to grant leave to appeal on Grounds of mixed Law and facts and to argue the fresh points would occasion grave miscarriage of justice to the Appellants/Applicants’.
9. The Appellants/Applicants’ also require a deeming order validating the already filed Notice of Appeal and the already compiled Record of Appeal and filed Brief of Argument

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based on the Ground of mixed Law and facts and the new points.

10. The Appellants/Applicants’ had indicated in their Brief of Argument that they would bring an application seeking leave of the Honourable Court to argue the new points.

This motion is supported by a twenty-two paragraphs affidavit deposed to by one Chukwudi Maduka, a lawyer in the law firm of Gordy Uche (SAN) & Co. There is also a further affidavit in support of this motion dated and filed on the 22nd September, 2017, Annexed to the further affidavit are the judgment of the trial Court, a notice of appeal against that judgment to the Court of Appeal and the notice of appeal against the judgment of the Court of Appeal which are marked Exhibits A, B, C and D respectively.

In reaction to the Appellants/Applicants’ motion on notice, a forty-one paragraphs counter affidavit deposed to by Doyinsola Alege, a legal practitioner in the law firm of Messrs Ahmed Raji & Co. was filed on the 20th September, 2017 on behalf of the 3rd Respondent. The 1st and 2nd Respondents did not react to the Appellants/Applicants’ motion on notice. Annexed to the counter affidavit is a copy of the

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affidavit of one Chief Ayo Fabuyide which is marked Exhibit A.

Now issues having been joined, the parties in line with the relevant rules of this Court submitted written briefs of argument. The Applicants’ brief of argument was filed on the 27th March, 2017 along with the motion on notice. Mr. Gordy Uche learned senior counsel for the Applicants submitted one issue for determination of this application as follows: –

Whether the Appellants/Applicants’ are entitled to the exercise of the discretion of this Honourable Court to grant the reliefs in this application.”

Mr. Ahmed Raji, learned senior counsel for the 3rd Respondent filed the 3rd Respondent’s brief of argument on the 20th September, 2017. At page 2 of the said brief, learned senior counsel submitted a lone issue for determination of this Application as follows: –

“Whether from the facts and circumstances of this case, the Appellants/Applicants’ are entitled to the reliefs sought in their application.”

The Appellants/Applicants reply brief attached to the further affidavit in support of the Appellants’ motion on notice is dated and filed on the 22nd September, 2017.

Before

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I consider the submissions of learned senior counsel for the parties, I wish to set out albeit in brief the facts that led to the present application.

The Applicants herein and the 3rd Respondent are members of the 1st Respondent. The 1st Respondent is a political party with its headquarter in Abuja, while the 2nd Respondent is a body charged with conduct of National Elections in Nigeria.

The Applicants were dissatisfied with the primary election of their party that was conducted on the 6th of December, 2014 at Ado-Ekiti for the purpose of selecting a candidate for election into the House of Representative. They challenged the primary election by taking out an originating summons at the Federal High Court Abuja. They lost. Their appeal to the Court of Appeal was dismissed. Their notice of appeal to this Court, filed on the 1st of September, 2016 contains nine grounds of appeal. By a notice of preliminary objection to the hearing of the appeal filed on the 14th March, 2017, the 3rd Respondent challenged the competence of the appeal on the ground that all the Grounds of Appeal are incompetent because the appellants failed to obtain leave as provided

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for by the rules of this Court.

The present application has been brought by the Appellants to cure the defect highlighted in the preliminary objection aforesaid.

In arguing the motion on notice, learned senior counsel for the Applicants relied on all the twenty-two paragraphs of the supporting affidavit as well as the pages of the record of appeal referred to in the affidavit. In a further argument, learned senior counsel conceded that the applicants failed to obtain leave of either the lower Court or this Court before filing some Grounds of Appeal which are of mixed law and facts. Learned Senior Counsel enumerated the grounds for which leave is required as Grounds 3, 4, 5, 6 and 9. Although, learned counsel submitted at paragraph 4.7 of the Applicants’ brief that Grounds 1, 2, 7 and 8 are Grounds of Law for which no leave is required, at paragraph 4.10 of the same brief, learned senior counsel admitted that Grounds 1 and 2 contain fresh issues that were not considered by the lower Courts as such the applicants required the leave of this Court to raise them. From the argument of learned senior counsel for the Applicants, it is very clear that the

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grounds that are sought to be regularized are Grounds 1, 2, 3, 4, 5, 6 and 9. The only grounds of appeal that are competent according to the learned senior counsel are Grounds 7 and 8. In course of his argument, learned counsel cited several authorities. I will consider these authorities anon.

Mr. Raji, learned senior counsel for the Respondents argued extensively on the non-compliance with Order 6 Rule 2 (1) (c) of the Rules of this Court, where it is provided that copies of the judgments of the two Courts below and the notice of appeal shall be attached to an application for extension of time to appeal. I have said elsewhere in this ruling that these documents have been attached to the further affidavit of the applicants. It will appear, the learned silk did not comb properly the record of this application in his possession and has therefore wasted his precious time making erroneous submission. However, learned senior counsel argued that Grounds 1 and 2 of the grounds of appeal, being new issues that were never raised at the trial Court and the lower Court, the Appellants/Applicants required leave before raising them. Having failed to obtain leave

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before raising them, they are incompetent.

In aid, learned senior counsel cited Organ & Ors v. Nigeria Liquified Natural Gas Ltd & Anor (2013) LPELR – 20942 (SC) and Order 2 Rule 28(3) & (4) of the Rules of this Court.

Still in argument, learned senior counsel submitted that the 7th Ground of Appeal is incompetent since it does not attack the reasoning of the Court and that the 8th Ground of Appeal is vague, nebulous and incoherent, because no meaningful complaint can be inferred from it. In aid, learned counsel cited Order 8 Rule 2(2) and (4) of the Supreme Court Rules 2008 and the authorities in Akeredolu vs Mimiko & Ors (2013) LPELR 21413 (SC); Saraki v. Kotoye (1992) 1142 SCNJ 26; Emmanuel v. Umana & Ors (2016) LPELR 40659 (SC).

In his reply on point of law, learned senior counsel for the applicants is insisting that the 1st, 2nd, 7th and 8th Grounds of Appeal are Grounds of Law for which no leave is required from either the lower Court or this Court and that by the authority isErisi & Ors v. Idika & Ors (1987) LPELR 1160 (SC), this Court has power to deem a Notice of Appeal as having been properly filed and

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served in order to expedite the hearing of the appeal on the merit. In a further argument, learned senior counsel urged this Court to hold that the failure to obtain leave is a mistake of counsel which should not be used as a ground of objection, since a counsel’s sin ought not to be visited on the litigants. Finally learned senior counsel urged this Court to grant this application.

Section 233 (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria provides that an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right where the ground of appeal involves questions of law alone. Sub-section 3 of the same Section of the Constitution, subjects its provisions to Sub-section 2 and clearly states that an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court. These constitutional provisions have received judicial interpretations in a number of cases. In the case of Yaro vs Arewa Construction Co. Ltd (2007) 17 NWLR (pt. 1063) 333 at 358 – 359 paras G – A, which is cited and relied upon by learned counsel for the Applicant, this

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Court, per Chukwuma-Eneh, JSC said: –

“Appeals to this Court by leave which otherwise means permission, relates to matters of facts or mixed law and facts for which leave of the Court below or this Court must be obtained as matter of condition precedent; see Nalsa Team Associates vs NNPC (1991) 8 NWLR (pt. 212) 652 SC. This Court has the responsibility to ensure that the Grounds of Appeal in respect of the matters before it fall within its constitutional competence. In this regard therefore, a ground of appeal is not let off the hook simply because it is tagged an error in law. This Court must be satisfied it is so… The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground. However, one ground of appeal on law in a notice of appeal, I must observe, is capable of sustaining an appeal.”

In Opuiyo v. Omoniwari (2007) 16 NWLR (pt. 1060) 415 at 413 paragraph E, this Court per Oguntade JSC held: –

“It is now settled law that this Court cannot hear an appeal on grounds of mixed law and fact unless leave of the Court or the Court of Appeal has been obtained.”

See Dairo v. Union Bank of Nigeria

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Plc (2007) 16 NWLR (PT. 1059) 99; Kashadadi vs. Noma (2007) 13 NWLR (PT. 1052) 510.

Now the Applicants have submitted that the 1st and 2nd Grounds of Appeal raise new points, and they being grounds of law alone, require no leave from either this Court or the lower Court. The general rule adopted in this Court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court, but where the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence shall be called, this Court being the final Court will allow the question to be raised and the points taken in order to prevent an obvious miscarriage of justice. See K. Akpene v. Barclay Bank of Nigeria & Anor (1977) 11 NSCC 29: Shonekan vs Smith (1964) ALL NLR 168: INEC vs Musa (2003) 3 NWLR (Pt. 806) 72.

Are the 1st and 2nd Grounds of Appeal grounds of law alone for which this Court can countenance To answer this question, I wish to set out the two grounds hereunder without their particulars as follows: –

1. The Court of Appeal erred in law in holding that the appellants did

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not file any further affidavit to controvert the most potent averments contained in the 3rd Respondent’s further affidavit and better affidavit particularly paragraphs 7(1) to (xiii) and 7 (i) (ii), 8 and 9 thereof to the effect that the national executive committee of the 1st Respondent appointed a committee which conducted the primary election on 6th December, 2014, when infact the said further counter affidavit and further and better counter affidavits ought to have been discountenanced and struck out for being an abuse of Court Process.

2. The Court of Appeal erred in law when it countenanced and acted upon the 3rd Respondent’s incompetent further counter affidavit and further and better counter affidavits in dismissing the appellant’s appeal in part.

The Applicants opened up Grounds 1 and 2 by stating that the Court of Appeal erred in law. The fact that a ground of appeal alleges an error of law does not ipso facto make it a ground of law. In other words, the nature of a ground of appeal is not necessarily the one ascribed to it by the Appellant. It is not the form but the question raised by the ground that determines its nature as to whether it

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is a ground of law alone, or a ground of mixed law and fact, or a ground of fact. See Ogbechie & Ors v. Onochie & Ors (No. 1) (1986) 7 NSCC 43, (1986) 2 NWLR (pt. 23) 484; Medical & Dental Practitioners Disciplinary Tribunal V. Dr. J.E.N. Okonkwo (2001) 84 LRCN 908 at 936, (2001) 7 NWLR (pt. 711) 206.

A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed. See Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718: Ogbechie & Ors vs. Onochie & Ors (supra).

For the first ground of appeal, the further counter affidavit and further and better counter affidavit alluded to in the said ground of appeal could only be discountenanced and struck out on production of evidence that the said processes constitute an abuse of Court process. Also the issue of filing a further affidavit to controvert the most potent averments contained in the 3rd Respondent’s further affidavit and further and better affidavit as held by the lower Court are not based on facts proved, admitted or undisputed in the proceedings. In my view therefore, the first ground of

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appeal is not a ground of law alone as contended by the Applicants.

For the 2nd Ground of Appeal, evidence is required to establish that the further counter affidavit and further and better counter affidavit which are expression of facts were properly placed before the lower Court. This ground apart from the fact that it contains new issue which could be properly raised pursuance to the leave of Court first sought and obtained, it is a ground of mixed law and fact which cannot be considered by this Court in absence of the leave of either this Court or the lower Court. See Ogbechie & Ors vs. Onochie & Ors. Paragraph vii of the particulars of error to the 2nd ground of appeal, clearly states as follows: –

” The 3rd Respondent never sought the leave of the Judge before or after filing her said further counter affidavit and further and better counter affidavits which were also filed outside the 14 (fourteen) days as provided for in Order 13 Rule 35(15) of the Federal High Court (Civil Procedure) Rules 2009.”

The question of filing affidavit out the prescribed period is not based on the application of law to the facts which are proved,

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admitted or undisputed. Particulars to the Grounds of Appeal are part of that Ground of Appeal. It is therefore my firm view that the 2nd Ground of Appeal is not ground of law alone.

The remaining Ground 7 and 8 in my view are Grounds of mixed Law and Facts. I will reproduce them without their particulars as follows: –

“7. The Court of Appeal erred in law when it held “Also with the holding of the election stated for 28th day of March, 2015, the question of who should have been the candidate of the 1st Respondent in that election is no longer relevant.

8. The Court of Appeal in holding that “In an action to determine who a party nominated as its candidate, the input of the party is of paramount importance. INEC on the other hand is merely a nominal party with little or no stake in the matter.”

While Ground 7 states that the Court of Appeal erred in law, the 8th Ground of Appeal makes no reference to error of law on the part of the lower Court. The Applicants have also failed to highlight in Grounds 1, 2 and 7 the law which was erroneously applied to the facts which were either proved, admitted or undisputed. It is therefore my firm view

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that the 1st, 2nd, 7th and 8th Grounds of Appeal are not Grounds of Law alone. They are either Grounds of mixed Law and Fact or Grounds of Fact. The law is settled beyond any doubt that this Court cannot hear an appeal on grounds of mixed law and fact unless leave of this Court or the Court of Appeal is sought and obtained. From the reasons I have set out herein above, all the Grounds of Appeal in the applicants’ notice of appeal are incompetent. The Applicants failed and/or neglected to obtain leave of either this Court or the lower Court before the notice of appeal was filed. A notice of appeal without a single ground of appeal is incompetent. In Khalil vs YarAdua (2003) 16 NWLR (PT. 847) 446 at 477 – 478 paras 4-A, this Court, per I. T Muhammad, JSC said: –

“It behoves me at this juncture to state that Grounds of Appeal are no doubt, the soul of an appeal. They are the reasons why the decision being appealed against is considered wrong by the aggrieved party. Where the validity of Grounds of Appeal is successfully challenged in an appeal, certainly nothing shall remain of that appeal.”

See Okeke Amadi v. Okeke Okoli (1977) 11 NSCC 117 at

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118; Pleiffer v. The Midland Railway Company (1987) 18 QBD 243; Murifett vs. Smith (1887) 12 PD 116.

Since the notice of appeal is incompetent, it presupposes that there is no notice of appeal before this Court. This being so, there is nothing to amend, as the applicant cannot be given an order to put something on nothing and expect it to stand.

For all I have said, this application lacks merit and it is accordingly dismissed.

Having dismissed the application, what then is the fate of the purported notice of appeal that was filed on the 1st of September, 2016 In Okeke Anadi vs. Okeke Okoli (1977) 11 NSCC 117, this Court after having found all the grounds of appeal defective suo motu struck out the incompetent notice of appeal. In the instant case, although there is nothing to strike out, it is neater to strike out the purported notice of appeal which was filed on the 1st of September, 2016. Accordingly, the said notice of appeal is struck out for being incompetent, I make no order as to costs.

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SC.759/2016(R)