Peoples Democratic Party V. Chief Timipre Martin Sylva & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This appeal was argued on the 8th day of November, 2016 but due to the peculiarity of the case, the Court stood down the appeal and delivered its judgment thereafter on the same day whereby the appeal was struck out on the preliminary objection raised by the 1st and 2nd respondents which was sustained. We then reserved to give reason for our decision today the 18th day of November, 2016. Here goes the reason for our judgment.

This is an appeal against the judgment of the Court of Appeal, Abuja division (hereinafter referred to as the Lower Court) delivered on 22nd September, 2016 which dismissed the appeal filed by the appellant.

The gist of the matter that culminated into this appeal goes thus: The 1st and 2nd respondents herein, as Petitioners had filed a petition No. EPT/BY/GOV/002/2016 on the 30th of January, 2016. In the said petition, they had challenged the election and declaration of the 4th respondent as the Governor of Bayelsa State and the cancellation of the elections of the 6th of December, 2015 in Southern Ijaw Local Government Area. Respondents

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to the petition filed their respective replies. In particular the 3rd respondent now the appellant in its reply to the petition prayed the tribunal to dismiss the petition. In its words, paragraph 52 of the reply reads thus:

“52. Whereof the respondent urges this Honourable Court to dismiss this petition in its entirety as being unmeritorious, frivolous incompetent, vague and generic.”

After hearing parties and considered addresses of counsel, the tribunal its judgment, inter alia, held as follows:

“In all, the petitioners have failed woefully to prove entitlement to any of the reliefs sought in this petition. Relief 4 had earlier been jettisoned. For clarity sake all other reliefs sought by the petitioners in paragraph 77 of the petition are dismissed as lacking in merit.”

The 3rd respondent then being dissatisfied filed a Notice of Appeal to the Lower Court on 15th August, 2016 challenging the decision of the trial tribunal on seven (7) Grounds of Appeal.

In its judgment, the Lower Court on page 11,689 of the record, found as follows:-

“What the 3rd respondent now appellant seeks before the Court as contained on page

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32 of its brief reads:

‘On the strength of these submissions, your Lordships are urged to allow this appeal and grant all the reliefs of the appellant as contained in its notice of appeal and accordingly dismiss the petition.’

It seems clear from the above that what the appellant seeks in this appeal is dismissal of the petition which is exactly what the lower tribunal did. In other words, the judgment was in the 3rd respondent/appellant’s favour.”

Upon hearing the preliminary objection of the 1st and 2nd respondents to the appeal, on the ground, inter alia, that since the tribunal had dismissed the petition as prayed by the appellant, it had no right of appeal again, the Lower Court then sustained the objection of the 1st and 2nd respondents and struck out the appeal, but being an intermediate appellate Court proceeded to consider the appeal on merit, which was later dismissed having been found to be unmeritorious.

Dissatisfied again with the decision of the Lower Court led the appellant to the instant appeal predicated on the Notice of Appeal of eight grounds of appeal filed on 4th October, 2016.

Upon the appeal being

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properly entered, parties filed their respective briefs of argument and exchanged same.

Appellant’s brief of argument was filed on 19th October, 2016 while the 1st and 2nd respondents’ brief of argument was filed on 24th October, 2016. The 3rd and 4th respondents did not file any brief of argument. The appellant filed its reply brief of argument to the 1st and 2nd respondents’ brief on 26th October, 2016. The appeal was later heard on the 8th day of November, 2016 on the briefs of argument of the appellant and 1st and 2nd respondents alone.

In its brief of argument, the appellant formulated the following three issues for determination of the appeal:-

1. Having regard to the entire facts and circumstances of this case, vis–vis the settled position of the law, whether the Lower Court was not wrong when it struck out the appellant’s appeal before it for being incompetent. (Grounds 1, 2 and 3).
2. Juxtaposing the peculiar facts of this case with applicable case law and statutes, whether the Lower Court was not wrong in its failure to determine the merits of and uphold the fundamental, constitutional and jurisdictional

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objections raised to the petition and the reliefs sought thereat (Grounds 4, 5, 6 and 8)

3. Whether the Lower Court was not wrong when it failed to expunge Exhibit P42B from the evidence as inadmissible – (Ground 7)

In response, the 1st and 2nd respondents in their brief of argument adopted the issues distilled by the appellant from its grounds of appeal.

However, on the same 24/10/2016, the day the 1st and 2nd respondents (hereinafter referred to as the respondents) had filed their brief of argument, they also filed a Motion on Notice to be heard by way of preliminary objection praying the Court for the following relief:

“An order striking out this appeal for want of competence.”

The respondents gave four (4) grounds upon which they based their objection and supported it with an affidavit of three main paragraphs.

To oppose the application, the appellant filed a counter affidavit of seven paragraphs.

In their brief of argument earlier referred, the respondents gave a Notice of Preliminary Objection and argued same in the said brief of argument.

At the hearing of the appeal, the

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attention of the Court was properly drawn by the respondents to the preliminary objection before the appeal was argued and it was accordingly deemed argued, pursuant to the provisions of the Rules of this Court.

In the respondents’ brief of argument the learned senior counsel for the respondents referred to the first ground of their preliminary objection, which is that the appellant has not appealed against the following very vital finding made by the Lower Court:

“Who is an appellant An appellant is a party to a proceeding who is aggrieved by the decision of the Lower Court and had consequently appealed in respect thereof. A party cannot appeal against a decision which does not wrongfully deprive him of an entitlement or something which he has a right to demand”

Learned senior counsel contended that before the Lower Court made the above finding, it had prepared the ground as follows:

“From the above judgment, it is clear there was no order made against the 3rd respondent. Neither was any relief claimed by the 3rd respondent dismissed. What the 3rd respondent now appellant seeks before this Court as contained on page

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32 of its brief read…… It seems clear from the above that what the appellant seeks in this appeal is dismissal of the petition which is exactly what the lower tribunal did. In other words, the judgment was in 3rd respondent/appellant’s favour. The contention of the respondents in this preliminary objection was that the 3rd respondent could not appeal against the judgment that was in his favour.”

Learned senior counsel contended further that with the above, the Lower Court was seen to be laying foundation for what it later found on who an appellant is. He submitted that the appellant’s appeal is against the foundation rather than the ratio decidendi of the decision of the Lower Court.

He referred to an unchallenged finding of the Lower Court and contended that it meant the following:

(a) That an appellant is a person aggrieved; hence the appellant who was not aggrieved had no right of appeal, and;

(b) That the Supreme Court had, two previous decisions, – Mobil v. Monokpo, and Akinbiyi v. Adelabu (supra) held that a person against which no decision has been made has no right of appeal.

Learned senior counsel referred

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to Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, read together with Section 6(2) (e)(iv) of the 2nd Alteration Act to the Constitution, and contended that a right of appeal exists only against a decision or finding but not against a foundation or preparation to make such decision or finding. Put other words, all right of appeal exists against a ratio decidendi but not against preparation or foundation to pronounce a ratio decidendi.

The respondents contended that since the finding of the Lower Court goes to the very foundation, namely, the appellant’s right of appeal; and since the appellant has not appealed against it, appellant has completely lost the right of appeal on any ground to this Honourable Court. He submitted that, the appellant’s instant appeal being incompetent should be struck out. He urged the Court to do so on this ground alone.

On the second ground of objection, learned senior counsel contended that there is no competent Record of Appeal before the Court. He submitted that when there is incomplete or incompetent record of appeal, the appeal is incompetent.

He referred to

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the Record of Appeal and contended that it completely omitted the appellant’s Reply to the petition. And that it also contained an extraneous matter that is, the Notice of Appeal in a different appeal. He submitted that this appeal is incompetent.

On the third ground of objection, the respondents contended that neither the trial tribunal nor the Lower Court nor this Apex Court has jurisdiction to entertain the appellants objection against the 1st respondent’s qualification to contest the Bayelsa State Governorship Election. Learned senior counsel submitted that this is constitutional. For the Tribunal, he referred to Section 9(2) of the 2nd Alteration Act to the 1999 Constitution. For the Lower Court, Section 8(1) (c) (ii) of the 2nd Alteration Act. And for this Court, Section 6(2) (c) (iv) of the 2nd Alteration Act. From the above provisions of the statute, learned senior counsel submitted that the intention of the framers of the Constitution is very clear and unequivocal that matters that should be handled by Governorship Election Tribunals and appeals emanating therefrom must be limited to the question whether or not –

“any

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person has been validly elected to the office of Governor or Deputy Governor under this Constitution.”

Learned senior counsel contended that since the objection of the appellant was filed against the Election Petition filed by the 1st and 2nd respondents challenging the election of the 4th respondent as the Governor of Bayelsa State, neither the trial Tribunal nor the Court of Appeal nor indeed this Court has jurisdiction to entertain, let alone determine the complaint of the appellant against the qualification of the 1st respondent.

Learned senior counsel contended further that since the various jurisdictions of the Tribunal, the Court of Appeal and this Court has been circumscribed by the Constitution itself, the objection, now on appeal raised by the appellant against the qualification of the 1st respondent to contest the disputed Bayelsa State Governorship Election is itself a feature that has robbed the Courts of the requisite jurisdiction to entertain and determine it.

Another crucial point or ground of objection is that the appellant did not appeal to the Lower Court against the following finding of fact made by the Tribunal,

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namely;

“What is in dispute in this case is not a challenge to the election and return of 1st Petitioner as Governor, but a challenge to the election and return of the 2nd respondent as Governor.”

The respondents contended that the appellants ground 1 which quoted the portion of the judgment which would have accommodated the above named finding, willfully omitted the said finding. They contended further that there was no appeal against the above finding to the Lower Court by the appellant hence learned senior counsel submitted that that crucial finding of the tribunal stands and is binding on the appellant and even the Court.

Learned senior counsel submitted that this appeal is academic and no Court has jurisdiction to entertain an academic suit or appeal. He relied on Shettima v. Goni (2012) All FWLR (Pt. 609) 1007 at 1046. He submitted further that this appeal being incompetent ought to be struck out. He urged the Court to strike it out in limine, for want of jurisdiction.

As I stated earlier in response to the preliminary objection raised by the respondents by Notice of Motion and in their brief of argument, the appellant

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filed a Reply brief of argument in opposition of the said objection.

In the said reply which was settled by learned counsel for the appellant, Olabode Olanipekun, Esq., he referred to the contention of the respondents in their said objection and submitted that, that kind of objection can only be borne out of a complete misapprehension of the purpose and purport of a preliminary objection to the competence of an appeal and therefore that this misapprehension of the respondents alone is enough basis for the Court to jettison their objection.

Learned counsel referred to the substance of the respondents’ contention in their brief of argument and submitted that the portion touted by them as a finding cannot under any guise qualify as one. He submitted further that a finding refers to the pronouncement of a Court in relation to some specific issues in contest between the parties before it and which pronouncement effectively settles the issues in controversy. He relied on Fointrades Ltd v. Universal Association Co. (2002) 8 NWLR (Pt.770) 699.

Learned counsel contended that in the portion of the judgment being bandied as the most important

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finding on pages 11689-11690 of the record, the Lower Court was merely reviewing the state of the law with the aid of judicial authorities and after this exercise, the Lower Court then expressed its views qua finding on the issue it was considering. He referred to the Court’s finding on Pages 11691 to 11692 of the record and submitted that the said finding was appealed by the appellant.

On the contention of the respondents that the appellant’s appeal is against the foundation but not the substance, learned counsel submitted that indeed the foundation of a thing constitutes its core, nub and nucleus and once the Court holds in favour of the appellant in respect of its complaint against the foundation of the decision of the Lower Court, the entire decision of the said Court must necessarily collapse. He submitted further that the foundation of a decision is naturally the reason for the decision and that an appellant can only raise grounds of appeal in the reason for a decision. He relied on B.M.N.L. v. Ola Ilemobola Ltd (2007) All FWLR (Pt. 379) 1340 at 1369; Jim-Jaja v. Commissioner of Police, Rivers State (2013) 6 NWLR (Pt. 1350) 225 at 253.

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On the second limb of respondents’ objection that there was no competent record of appeal, in that the appellant’s reply to the petition before the Tribunal is not present in the record of appeal, learned counsel referred to pages 4447-4476 of the record which, he contended contained appellant’s reply to the petition of the respondents as petitioners at the trial Tribunal. And as regards the reference to an extraneous material the Notice of Appeal in a different appeal; he contended that the respondents failed to identify the said Notice of Appeal. He submitted that assuming that there is such Notice of Appeal, being extraneous simply meant that such Notice of Appeal is not critical to this appeal and will therefore be discountenanced. He submitted that there is no iota of merit in that contention.

On the third limb of the objection that the appeal does not come within the jurisdiction of this Court as well as that of the two Lower Courts, learned counsel adopted his arguments on Section 246 of the Constitution in the Appellants brief as a complete answer to the

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issue under this head. He contended that the provision of Section 246 (1) (c) (iii) of the Constitution (Section 8 (1) (c) (ii) of the 2nd Alteration Act and Section 233 (2) (e) (iv) of the Constitution (Section (2) (e) (iv) of the 2nd Alteration Act) are exactly the same. He submitted that there is no feature in the appeal of the appellant which divests this Court of jurisdiction. He restated that this Court is clothed with the vires to determine whether a person has been validly elected to the office of Governor or Deputy Governor of a State. Learned counsel submitted that a Legislation which purports to take away the right of a person or exclude the jurisdiction of a Court must do so expressly and same cannot be by way of inferences and conjectures. He relied on Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 904) 242 at 283. He submitted further that there is nothing in the said Section 246 or Section 233 (2) (e) (iv) of the Constitution which expressly or impliedly oust the jurisdiction of the Court of Appeal and this Court to countenance the appeal of the appellant neither do these Sections deprive the appellant of a right of

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appeal.

Learned counsel contended that this limb of the objection is a backdoor attempt to invite this Court to make pronouncement on the merits of the appeal at the interlocutory stage of a preliminary objection, an attempt outrightly proscribed by law. He relied on Nwakwo v. Yar’adua (2010) 12 NWLR (Pt.1209) 518 at 540 and Odon v. Bariga-Amange (No.2) (2010) 12 NWLR (Pt. 1207) 13 at 28.

Learned counsel referred to the arguments of the respondents contained in their paragraphs 3.32-3.38 of their brief of argument and contended that the said arguments were part of the respondents’ objections to appellant’s grounds of appeal before the Lower Court, which objections the Lower Court found unmeritorious and discountenanced. He submitted that the respondents having not appealed against the decision of the Lower Court which found that appellant’s grounds of appeal as competent are taken to have accepted the correctness of the Lower Court’s decision and are therefore bound by same. He urged the Court to discountenance the submissions of the respondents referred above for lacking in merit. He finally urged the Court to dismiss the preliminary objection

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and refuse the reliefs sought the Motion on Notice.

There is no doubt and this is very clear from the record of appeal, as stated earlier that the origin of this appeal was from the trial Tribunal where the 1st and 2nd respondents herein were petitioners challenging the election and declaration of the 4th respondent as the Governor of Bayelsa State, and the cancellation of the elections of the 6th December, 2015 in Southern Ijaw Local Government Area. It is also clear that the appellant herein was a respondent, indeed, the 3rd respondent to the petition filed by the 1st and 2nd respondents before the trial Tribunal.

Perhaps it is necessary to state here why the 3rd respondent before the trial Tribunal filed an appeal. This can be gathered from the appellants brief of argument filed at the Lower Court. The brief was said to be presented in the appeal against the portion of the judgment of the Bayelsa State Governorship Election Tribunal, whereat it refused to pronounce on what is the appellant considered diverse weighty and constitutional issues properly raised before it by the appellant as well as on the inadmissibility of Exhibit P42, a

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VCD recording tendered by the 1st and 2nd respondents as petitioners before the Tribunal. The appellant then raised the following two issues for determination by the Lower Court.

1. Having regards to the entire facts and circumstances of this case, whether the trial tribunal was not in grave error when it refused to pronounce on and resolve the diverse fundamental, jurisdictional and constitutional issues qua objections to the reliefs and pleadings in the petitions properly raised before it and dismissed the petition.
2. Whether the trial tribunal was not in grave error when it refused to pronounce on the inadmissibility of Exhibit P42B and treat same as inadmissible.

In conclusion of the appellant’s said brief of argument at the Lower Court, the appellant states, inter alia, as follows:

“…the trial tribunal indeed failed to resolve critical issues which were properly raised before it, the resolution of which would have led to the dismissal of the petition in limine …… Your Lordships are urged to allow this appeal and grant all the reliefs of the appellant as contained in its notice of appeal and accordingly dismiss

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the petition.” (Underlining supplied)

Upon consideration of the preliminary objection raised to the appeal by the respondents before the Lower Court, the Court opined as follows:

“The main question to be answered in this preliminary objection is whether or not the appeal of the appellant is competent.”

The Lower Court in its considered judgment went further and referred to and quoted from the judgment of the trial tribunal then appealed against before it, which dismissed the petition having considered all the reliefs sought by the petitioners lacking in merit.

There is no doubt and it is interesting to note that what the appellant as a respondent to the Petition before the trial tribunal desired was a dismissal of the petition. And what the tribunal did was to dismiss the petition in its entirety.

One now wonders what the grouse of the appellant again is having had the entire petition dismissed as it desired and prayed the trial tribunal to do.

There is no doubt that any aggrieved party can appeal to this Court against the decision of the Court of Appeal. That is a right guaranteed by the Constitution. Indeed, any

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right of appeal to the Supreme Court from the decision of the Court below conferred by the Constitution shall be exercisable in the case of civil proceedings at the instance of a party thereto. See: Section 233 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended. However, that provision has been held to be understood to apply to only an aggrieved party or person. In other words, because an appeal is ordinarily lodged against a grievance arising from a judgment, only a party who is aggrieved can appeal against it.

In Mobil Producing Nigeria Unlimited & Anor. v. Chief Simeon Monokpo & Anor (2003) 12 SCM 145, it was held that “a party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand.

Generally, to be aggrieved, a person must have some legal rights that are adversely affected or having been harmed by an infringement. See; Black Law Dictionary, Ninth Edition.

There is no doubt that the appellant is not quarreling with the dismissal of the Petition of the 1st and 2nd respondents. That was exactly what it

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had prayed for, but may be the appellant may have wanted more than merely dismissal of the petition. In other words, I cannot see how the order of dismissal of the petition and affirmation of same by the Lower Court has adversely affected the appellant to grant it right of appeal. I agree with the Lower Court, that there was no order made against the appellant by the trial tribunal which, the face of the ultimate dismissal of all the reliefs sought by the petitioners is appellable in the decision of the Lower Court. In my view this appeal leaves much to be desired.

Now, looking at the grounds of objection raised by the respondents, to the effect that the appellant did not appeal against a crucial part of the decision of the Lower Court, I am unable to see how the appellant can competently appeal against its favour. This, to say the least, actually renders the said appeal incompetent. An appeal is said to be a challenge against the decision or judgment of a trial Court but it is never predicated on what a Court did not decide its judgment or ruling. See; Dr. Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors (2009) 7 SCM 118; (2009) 13

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NWLR (Pt. 1157) 83.

It is trite law that an appeal is a continuation of the original case commenced at the trial Court of first instance. It is not and cannot be a new cause of action. See; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 171 at 211; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250. In this appeal the case commenced by the respondents had been dismissed with all the reliefs sought. In which case there was nothing left with the petitioners whose petition was totally dismissed for the appellant to have been adversely affected. This point is resolved in favour of the appellant rendering the appeal incompetent.

On the second ground of objection, I am unable to agree with the learned senior counsel for the respondents that the record of appeal is incomplete, for not having the appellant’s reply to the petition. This, to say the least, is a misconception. The appellant’s reply to the petition is part of the record of appeal on pages 4447-4476 of the record. This objection therefore lacks substance and is accordingly discountenanced.

On the third ground of objection, lam of the view that since the trial tribunal never decided

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and on appeal to the Lower Court the issue was not decided upon, the main case of the respondents having been totally dismissed, I see no useful reason in dealing with the same again.

In the final analysis, the original Petitioners/respondents’ case having been dismissed in favour of the appellant which order of dismissal cannot be said to have wrongfully and adversely affected the appellant, this appeal is for that reason incompetent and was held liable to be struck out. It was accordingly struck out on the 8th November, 2016 when I reserved to give my reason for saying so today. This is my reason for striking out the appeal.

Appeal struck out.

Parties are to bear their respective costs of the appeal.

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SC.845/2016