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  • Appellant can’t use other court’s decision as appeal ground

    Appellant can’t use other court’s decision as appeal ground

    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)
  • Battle to save dying languages gains ground

    Battle to save dying languages gains ground

    The battle is on to save Igbo language, considered to be on the verge of extinction because it is not spoken enough by indigenous speakers. From time to time organisations and individuals sound the alarm or sponsor an event to turn attention back to the language. Not too long ago, a university in Ebonyi State set up a culture day event at which, among other things, Igbo was the language spoken.

    The Institute for Teaching and Learning of Nigerian Languages (NINLAN) located at Akpaa, Ovom community in Obingwa Local Government Area of Abia State is broadening the battle to save all threatened tongues. The institute hosted educationists, language experts and other stakeholders in a bid promote and sustain Nigeria’s indigenous languages.

    The institute, apart from marking UNESCO’s mother tongue’s day and the annual acculturation day celebration, has embarked on various programmes and campaigns towards the teaching and learning of Nigeria’s dying indigenous languages.

    And this time, the institute assembled communication experts, teachers and promoters of various indigenous languages across the 36 states of the federation to brainstorm how the Sustainable Development Goals (SDGs) could be sustained through Nigerian languages.

    Some of the speakers at the event included Prof. Imelda Udoh of the Department of Linguistics and Nigerian Languages, University of Uyo, Akwa Ibom State (lead Paper Presenter), Prof. Andrew Haruna, Vice Chancellor, Federal University, Gashua, Yobe State (Keynote Speaker), Prof. Grace C. Offorma of the Department of Arts Education University of Nigeria Nsukka (Lead Paper Presenter), Dr. Goke Alamu  of Department of Linguistics and Nigerian Languages, Ekiti State University, Ado-Ekiti (Lead Paper Presenter)… and for five days, they denied themselves the comfort of their homes and cozy offices to stay back at the institute robbing minds together on how to ensure that local languages in the country do not go into oblivion in 2050 as reportedly predicted by UNESCO.

    In his keynote speech, Vice Chancellor, Federal University, Gashua, Yobe State, Professor Andrew Haruna stated that Sustainable Development Goals (SDGs) are a set of 17 global goals with 169 targets which are spearheaded by the United Nations and involved 193 members and the global civil society. The SDGs Prof Haruna further stated was contained in paragraph 54 of the UN Resolution A/RES/70/1 of September 25, 2015. He mentioned some of the SDGs to include end to poverty, zero hunger, good health and well-being, quality education, clean water and sanitation, gender equality among others.

    He said as a nation, Nigerian languages could contribute to the SDGs if it is used as media for communication in such a way it will significantly enhance the achievement of sustainable development particularly in the area of eradication of hunger and poverty.

    He gave an instance in the health sector where Professor Herbert Igboanusi of the University of Ibadan tried to eliminate stigmatisation and discrimination of persons living with HIV and AIDS by creating new names for Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) in Igbo, Hausa and Yoruba.

    Prof Haruna said the effort was the outcome of a two year research titled; “A metalanguage for HIV/AIDS and Ebola discourses in Igbo, Hausa and Yoruba” which he said was sponsored by the Tertiary Education Trust Fund (TETFund).

    Professor Grace Chibiko Offorma of the Department of Arts Education, University of Nigeria, Nsukka in her paper said that since language is a system of signs, symbols and rules and their applications to convey thoughts, feeling and information, it could be deployed effectively in so many ways to achieve sustainable development which is a cardinal pillar of achieving the SDGs.

    Prof Offorma said basic education must be improved upon which she stated in itself will inculcate in the child the spirit of inquiry and creativity through the exploration of nature by using practical things which will provide education that would imbibe in the learners, at the foundation stage, the tenets of sustainability.

    She further said that to achieve the goal, emphasis must not only be placed on child education, but that Nigeria needs a literate and environmentally informed citizenry and human capital to guide the government in implementing their sustainable plans.

  • Boko Haram: Air and ground operations have improved, says GOC

    •10, 000 soldiers promoted in Yobe

    The General Officer Commanding 3 Division Nigerian Army Brig. General Mohammed Adbullahi Aliyu has said that the bureaucracy once associated with air operations and ground troops in the fight against Boko Haram has long been removed and the operations are quicker, more effective and responsive at the moment.

    The GOC while briefing journalists in Damaturu, the Yobe State capital, as part of his working tour, noted that all Brigade Commanders in the Northeast could make direct calls for air assistance in any part of the region in the event of any Boko Haram attack unlike in the past where long protocols must be observed before a pilot flew to a troubled area.

    Brig. Gen. Aliyu also spoke on the effort the military is putting in place to ensure that displaced people are returned to their liberated communities without recurrent attacks from the insurgents.

    He noted that about 400 soldiers had been deployed to Yobe State to ensure that commercial activities return to the liberated areas, especially the Damaturu/Buni Yadi/Biu road which had been closed from public travel for more than year.

    After assumption of office, Chief of Army Staff, Lt. Gen. Tukur Buratai, declared the road open to motorists but many refused to ply the road except security agencies that relocated to Buni Yadi.

    Speaking on the recent pockets of attack in Yobe, the GOC who is in charge of the Tactical Command, Damaturu explained that his troops have been generally on top of the situation, adding that the insurgents failed to wreak greater havoc because of the flow of useful information from the general public which he maintains is key to the success of the fight.

    He disclosed that the Boko Haram terrorists that attacked 120 Batalion at Goniri on January 15 this year were pursued to the villages of Ajgin, Talala and Kafa, while about 14 Boko Haram terrorists were killed on the same day in Churokusko in Tarmuwa Local Government of Yobe State with different kinds of ammunitions recovered, including six AK-47 riffles, three IEDs, four 36 handheld grenades, one GPMG, four magazines and 382 Rams of 7.62 mm (NATO).

    In another attack in Babangida village on Sunday morning, the GOC said that the terrorists attacked a police station and took off with two Hilux vehicles belonging to the police. They also burnt down the Airtel telecommunication mast in the DPO’s compound.

    The GOC regretted that the attack on Babangida must have been aided by collaborators in the village, noting that the “Headquarters of 3 Division Civil Military Coordination Cell (CIMIC) is working hand-in-hand with the state government to sensitise the locals in order to discourage the collaborators aiding BHTs in achieving their aims”.

    Speaking on the morale of soldiers in the theater of operation, Brig. Gen. Aliyu disclosed that about 10, 000 soldiers have been given special promotion for exemplary fight against the insurgents in the state, with 1, 500 awaiting promotion.

  • Ondo APC to ensure level-play ground for aspirants

    Ondo APC to ensure level-play ground for aspirants

    The All Progressives Congress (APC) in Ondo State has reiterated its committment to a level-play ground for aspirants into political offices.

    Its Chairman, Hon. Isaacs Kekemeke, made the pledge while presenting the expression of interest and nomination forms to a senatorial aspirant for Ondo South District, Mr Morayo Lebi, at the party secretariat in Akure, the state capital.

    He said the party would conduct transparent primaries devoid of rancour.

    Reiterating his determination to conduct peaceful primaries, he said: ”I have no candidates, likewise all members of my executive committee”.

    Kekemeke said that the party has enlarged it coast and become the toast of the people.

    He said market women, artisans, road transport workers, and other groups are embracing the party on daily basis.

    The party leader congratulated APC members for the new development, stressing it was “divinely orchestrated”.

    The former Secretary Government (SSG) however, urged aspirants and supporters to ensure rancour-free primaries.

    He said: “Any party man who engages in friction before, during and after the party’s primaries in the state would be sanctioned.

    “Aspirants should conduct their campaigns in a civil manner like one family. Anybody who emerges after the exercise will become the party’s candidate. We are looking for community-focused candidates.”

    Kekemeke urged party members to win for souls for the party.

    He said: “We want to teach the Labour Party (LP) and the Peoples Democratic Party(PDP) the rudiments of political party administration.”

    Kekemeke commended Lebi for supporting the party morally and financially, noting that his contributions would further empower the chapter.

    Lebi,who spoke after receiving his forms from Kekemeke, promised to attract developmental projects to Ondo South District.

  • ‘Lagos ground water is not safe’

    Special Adviser on Environment to Lagos State Governor, Dr. Taofeek Folami, yesterday raised the alarm over what he called the pollution of the table water through improper discharge of domestic waste water on a daily basis.

    He said government would soon start regulating the sinking of boreholes and septic tanks.

    It was at a stakeholders’ sensitisation and interactive session organised by the Lagos State Water Regulatory Commission (LSWRC).

    Folami said all domestic waste water are discharged into gutters instead of the septic tanks.

    “It is a great challenge to ensure that our ground water is not polluted by domestic sources. Because the table water in Lagos is high, it is easy for these waters to pollute the ground water,” he said.

    Folami advised residents to channel all their waste waters into the septic tank.

    “Septic tank is not meant for sewage alone but for all waste water. In fact, it is easier to treat sewage than to treat waste water from our kitchen, bathroom, and laundry. Therefore, the water we pass out into the gutters is more dangerous to the environment than the sewage we keep,” he said.

    LSWRC’s Executive Secretary Mrs. Tanwa Koya, said the government, will from next year begin to regulate the sinking of boreholes and septic tanks.

    “Most times, the septic tank in one compound is separated from the borehole in another compound by a fence separating the two compounds. There have been established cases where sewage water seeps into boreholes,” she said; adding that Lagosians should endeavour to send samples of water from their boreholes to the Lagos State Drug Quality Control Laboratory for testing.

    Mrs. Koya said the state will soon start to sanction owners of water pipes that pass through gutters because such are source of contamination.

    “When such pipes bursts, the water becomes contaminated. The state has spent money to purify the water but the leaking pipes are polluting it.

    Although, all we are doing now is to sensitise people about our existence and objectives, the time will come when we will have to start sanctioning such acts according to the law,” she said.

    The forum also featured presentations from experts.