Lead Judgment Delivered by Ayobode Olujimi Lokulo-sodipe, J. c. a.

 

Concise facts

This is an appeal against the judgment delivered on 25/4/2016 by the Federal High Court holden in the Owerri Judicial Division.

The Appellant (then Plaintiff) by way of Originating Summons, commenced the case leading to this appeal against the Respondents (then defendant). Appellant’s grouse was based on the conduct and outcome of the primary elections conducted by the People Democratic Party (PDP)(1st Respondent) for the selection and nomination of a candidate to represent the party in the 2015 National Assembly election for the (Orlu) Senatorial District, Imo State.

By a motion filed on 21/4/2015, the Respondents challenged the jurisdiction of the trial Court to entertain the suit. On 25/4/2016, the trial Court duly delivered its judgment wherein it upheld the preliminary objection of the 1st and 2nd Defendants therein (now 1st and 2nd Respondents) challenging its jurisdiction to entertain the substantive matter and struck out the Appellant’s suit in limine.

This decision greatly aggrieved the Appellant and he subsequently lodged this Appeal.

The Respondents raised a Preliminary Objection in a process titled: “Notice by 1st and 2nd Respondents of Intention to rely on Preliminary Objection brought pursuant to Order 10, Rule 1 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of the Court” wherein it gave the Appellant notice that they shall raise a Preliminary Objection. to the hearing of this appeal and shall seek for the order to dismiss or strike out the appeal in its entirety.

 

Issue(s) for determination

The Appellant formulated three issues for the determination of the appeal viz:

Issue 1: Whether the learned trial judge of the Court below was right when he held that the order for the nullification of primary election is not within the purview and contemplation of Section 87(9) of the Electoral Act, (sic) 2010 as amended. (GROUNDS 1 and 2).

Issue 2: Was the learned trial judge right in not nullifying the Imo West Senatorial District primary election of the 1st Respondent conducted on 7/12/2014 and declaring the Appellant the candidate of the 1st Respondent for the Imo West Senatorial District Election held in April, 2015. (GROUND 3).

Issue 3: Whether the learned trial judge was right when he failed to consider the substantive suit after the 1st and 2nd Respondents’ preliminary objection was upheld and does this failure not amount to denial of Appellant’s right to fair hearing. (GROUND 4).

N:B The Court said “in line with the settled position of the law in respect of Preliminary Objection to an appeal, the Court is duty bound to first resolve the Respondents’ Preliminary Objection as upholding same could result in the non-entertainment of the appeal on the merit.” The case ofGARBA (RTD) V. MOHAMMED (2016) LPELR – 40612 (SC) was called in reference and on this note, the Court dealt with Respondents’ Preliminary Objection first.

 

Respondent’s argument

 

The grounds for the objection as set out in the Preliminary Objection are:

The Appellant has failed to appeal against the ratio decidendi of the decision of the lower Court.

Grounds 1 and 2 of the Appellant’s grounds of appeal are foundation of the decision; not the ratio decidendi of the decision of the lower Court.

Grounds 3, 4 and 5 of the grounds of appeal do not relate to the decision of the lower Court.

The Appellant in his brief of argument, argued issue 1 (formulated from competent grounds 1 and 2) together with issue 2 (formulated from incompetent ground 3).

The Appellant distilled issue 3 from incompetent ground 4 of his grounds of appeal.

The Appellant is in his brief seeking very different reliefs from what he pleaded and claimed at the lower Court and in his notice of appeal filed on 20th July, 2016.

The appeal is manifestly incompetent.

This Honourable Court lacks jurisdiction to entertain this appeal.”

While canvassing the first and second legs of the Preliminary Objection together, the Respondents stated the position of the law to be that the ratio decidendi of a case is the principle of law upon which the case was decided. According to him, it is this principle (ratio decidendi) that is binding on the parties that can be the subject of an appeal; not an obiter dictum. The Respondents posited that the holding of the trial Court with respect to their Preliminary Objection and as contained on page 459 of the record of Appeal shows that grounds 1 and 2 in the notice of appeal are issues relating to the foundation of the decision, i.e. interpretation of Section 87(9) by the trial Court preparatory to making its pronouncement and not the ratio decidendi.

In arguing the grounds of the Preliminary Objection, Respondents’ counsel, in respect of grounds 3, 4 and 5 of the notice of appeal said the grounds do not arise from live issues at the trial and not any hypothetical assumption by the Appellant. It is the stance of the Respondent that ground 3 which is to the effect that the trial Court failed to nullify the primary election of the 1st Respondent cannot be said to have arisen from the objection before the trial Court and which was the only matter the said Court pronounced on. The Court was consequently urged to strike out ground 3 and issue 2 formulated therefrom for being incompetent. Dwelling on ground 4 which the Respondents said complains about failure of the trial Court to consider the substantive suit, the Respondents submitted that this ground like ground 3 also erroneously presupposes that the trial Court had jurisdiction to entertain the suit but refused to hear and determine the substantive matter. Further, the Respondents pointed out that grounds 3 and 4 are also incompetent for contradicting each other and since the Appellant cannot approbate and reprobate, Respondent urged the Court to strike out grounds 3 and 4.

On ground 5, the omnibus ground, it is the stance of the Respondent that the said ground is designed to allow a complaint on the evaluation of evidence and it encompasses complaint of improper evaluation of evidence but that as the trial Court did not consider the substantive case, ground 5 cannot be said to have arisen from the judgment of the trial Court and is therefore incompetent and liable to be struck out. It was further pointed out that since the Appellant has not distilled any issue from the said ground, the ground is liable to be struck out since the position of the law is that any ground of appeal upon which no issue has been distilled and upon which no argument has been canvassed is deemed abandoned by an appellant and deserves to be struck out.

Respondents submitted that the Appellant’s argument in his brief on issue 1 (formulated from competent grounds 1 and 2) together with issue 2 (formulated from incompetent ground 3) should be stuck out in its entirety since Appellant has argued both issue 1 and issue 2 together. It was Respondents’ submission that the position of the law is that where an issue formulated from an incompetent ground of appeal is argued in the brief of argument with those formulated from competent grounds, the entire argument on both issues must be discountenanced. That it is not the duty of the Court to extract arguments in respect of the valid grounds from the invalid ones.

Also dwelling on issue 3 distilled from what they described as incompetent ground 4, the Respondents equally urged the Court to strike out the said issue as the position of the law is that issues for determination must be distilled from only competent grounds of appeal. It is respondents’ stance that an incompetent ground of appeal cannot give birth to a competent issue for determination, similarly, issues for determination distilled or framed from incompetent grounds of appeal which has been struck out, share the same fate with grounds of appeal which gave rise to them and such issues will be struck out.

Conclusively, Respondents posited that the Court lacks the jurisdiction to proceed with the appeal since same is manifestly incompetent and the Court was urged to strike out this appeal in its entirety.

 

Appellant’s argument

Appellant adopted and relied on the portion of their reply brief in respect of the Preliminary Objection to the appeal and urged the Court to overrule same and allow the appeal.

In response to grounds 1 and 2 of the Preliminary Objection, Appellant submitted to the effect that grounds of appeal consist of all the attacks and complaints against the judgment of a trial Court being appealed against and which an appellant relies on in urging an appellate Court to dismiss the judgment of the trial Court. It was canvassed by the Appellant that the grounds of appeal can be on the final decision, the finding of a Court, the reason for the decision, the omission in the judgment, a mistake or error found in the judgment and everything which the appellant feels is the reason why the judgment of the trial Court cannot be allowed to stand. It is Appellant’s contention that as long as the grounds relate or have a link to the issues canvassed before the trial Court or the judgment of the Court, they are competent and shall not be struck out by the Court.

The Appellant also submitted that a ground of appeal is not rendered incompetent if it is not lifted verbatim ad literatim from the judgment of the Court; or if it is couched in the language of the appellant. That as long as it relates to the decision of the Court or what the Court could have decided or acted upon; it is a valid ground of appeal. Cases considered relevant including that of Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421, were cited in aid of the submissions. Appellant therefore posited that grounds 1 and 2 in the notice of appeal are competent.

Dwelling specifically on the Respondents attack on his ground 5, i.e. the omnibus ground of appeal, the Appellant submitted that the Respondents have displayed a total misconception of the omnibus ground of appeal. That an omnibus ground of appeal is a general ground which does not attack a specific finding of a trial Court and therefore to that extent needs no issue to be formulated therefrom as it is a ground which is general in terms and cases considered relevant were cited in aid.

In relation to his argument of issues 1 and 2 together, the Appellant submitted that it was proper to do so.

In concluding, the Appellant posited that the arguments of the Respondents in respect of his (Appellant’s) grounds of appeal are unduly technical and this Court was urged to discountenance the Preliminary Objection in its entirety as it is quite unmeritorious.

 

Court’s findings

The Court observed that though an appeal is not a new action vis-à-vis the one from which it has arisen but its continuation; as it is a complaint against the decision of the trial Court, it must not only be initiated by a notice of appeal embodying the appellant’s grounds of appeal and particulars, but the complaint in the ground or grounds must be relevant to the decision appealed against and not to any matter which is not subject of the appeal. The case of FIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LTD (2010) LPELR – 1283(SC) was cited.

The Court went on to say that the settled position of the law has always been and still remains that where a notice of appeal is defective in a fundamental manner; such as where all the ground(s) in the notice are not valid or proper ground of appeal in that they are not distilled in relation to the decision appealed against, this Court (notwithstanding any appeal to the interest of the justice in the appeal) is invariably left with no option than to strike out such a notice.

In determining Respondent’s argument that the grounds of the Notice of appeal are unconnected with the decision of the trial Court appealed against, the Court herein looked into the motion for Preliminary Objection filed by respondents at the trial Court and the Court said that a party cannot disclose in his notice of appeal that he is appealing against a particular decision of the trial Court in a proceeding and go about formulating grounds of appeal in respect of another decision of the Court in the same proceeding.

The court found that grounds 1 and 2 are glaringly connected with the decision of the said trial Court that is the subject of the instant appeal and therefore competent. However, in respect of grounds 3 to 5 the Court held that they all relate to matters in respect of which the trial court never made pronouncement in that it never considered the substantive case before it on the merit. Consequently, grounds 3-5 are incompetent as it is not related in any way to the decision of the trial Court appealed against and same were struck out.

In the same vein, the court stated that the issues distilled from the grounds namely, issues 2 distilled from ground three and issue 3 distilled from ground 4 must and are hereby struck out having been distilled from incompetent or invalid grounds of appeal. The cases of ACHONU V. OKUWOBI (2017) LPELR – 42102 (SC); DREXEL ENERGY AND NATURAL RESOURCES LTD. V. TRANS INTERNATIONAL BANK LTD (2008) LPELR – 962(SC), (2008) 18 NWLR (Pt.1119) 388 (SC); and BALIOL NIGERIA LTD. V. NAVCON NIGERIA LTD (2010) LPELR – 717(SC), (2010) 16 NWLR (Pt. 1220) 619 (SC); were referenced.

On the propriety or otherwise of the Appellant arguing issue 1 formulated from grounds 1 and 2 (which have been held to be valid grounds) together with issue 2 distilled from ground 3 (which has been struck out for incompetence, the Court upheld Respondents’ argument to the effect that by arguing together the competent issue 1 and incompetent issue 2, it has rendered the arguments on both the issues liable to be discountenanced by the Court. Resultantly, the arguments in relation to Appellant’s issues 1 and 2 were discountenanced.

Flowing from above, grounds 3 – 5 in the notice of appeal have been struck out; and issues 2 and 3 distilled from grounds 3 and 4, having also been struck out; and arguments on issues 1 and 2 having been discountenanced, the appeal is left bare and without issues for its determination.

 

Held

The Preliminary Objection of the Respondents to the appeal was upheld. Consequently, the appeal was struck out for being incompetent. No order was made as to costs.

 

• Copyright: Lawpavilion(2017) LPELR-42881(CA)