3PLR – KHALIL V. MUSA YAR’ ADUA
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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KHALIL
V.
MUSA YAR’ ADUA
COURT OF APPEAL (KADUNA DIVISION)
CA/K/EP/GOV /5/2003
446 WEDNESDAY, 30TH JULY, 2003
3PLR/2003/107 (CA)
OTHER CITATIONS
(2003) 16 NWLR (Pt. 847)
BEFORE THEIR LORDSHIPS:
ALOMA MARIAM MUKHTAR, J.C.A. (Presided)
IBRAHIM TANKO MUHAMMAD, J.C.A. (Read the Leading Judgment)
OLUDADE OLADAPO OBADINA, J.C.A.
ISTIFANUS THOMAS, J .C.A.
IKECHI FRANCIS OGBUAGU, J.C.A.
BETWEEN
ENGINEER NURA KHALIL
AND
- ALHAJI UMARU MUSA YAR’ ADUA
- THE RESIDENT ELECTORAL COMMISSIONER, INDEPENDENT NATIONAL ELECTORAL COMMISSION, KATSINA STATE
- THE RETURNING OFFICER, KATSINA STATE, INDEPENDENT NATIONAL ELECTORAL COMMISSION, KATSINA STATE
- INDEPENDENT NATIONAL ELECTORAL COMMISSION
- THE ELECTORAL OFFICERS: BATAGARAWA, BATSARI, CHARANCHI, DAN MUSA, DUTSIN-MA, JIBA, KAITA, KANKIA, KATSINA, KURFI, RIMI, SAFANA, BAKORI, DANDUME, DANJA, FASKARI, FUNTUA, KAFUR, KANKARA, MALUNFASHI, MATAZU, MUSAWA, SABUWA, BAURE, DAURA, DUTSI, INGAWA, KASADA, Mal ADUA, MANI, MASHI SANDAMU AND ZANGO LOCAL GOVERNMENT AREAS OF KATSINA STATE
- THE RETURNING OFFICERS: BATAGARAWA, BATSARI, CHARANCHI, DAN MUSA, DUTIN-MA, JIBA, KAITA, KANKIA, KATSINA, KURFI, RIMI, SAFANA, BAKORI, DANDUME, DANJA, FASKARI, FUNTUA, KAFUR, KANKARA, MALUNFASHI, MATAZU, MUSAWA, SAllUWA, BAURE, BINDAWA, DAURA, DUTSI, INGA WA, KUSADA, MAI ADUA, – MANI,MASHI SANDAMU AND ZANGO LOCAL GOVERNMENT AREAS OF
KATSINA STATE - THE RETURNING OFFICERS OF ALL THE WARDS IN BATAGARAWA, BATSARI, CHARANCHI, DAN MUSA, DUTSIN-MA, JIBIA, KAITA, KANKIA, KATSINA, KURFI, ,:’ RIMI, SAFANA, BAKORI, DANDUME, DANJA, FASKARI, FUNTUA, KUFUR, KANKARA, MALUNFASHI, MATAZU, MUSAWA, SABUWA, BAURE, BINDAWA, DAURA, DUTSI, INDGAWA, KUSADA, Mal ADUA, MANI, MASHI SANDAMU AND ZANGO LOCAL GOVERNMENT AREAS OF KATSINA STATE
- THE PRESIDING OFFICERS OF ALL THE POLLING STATIONS AND UNITS IN BATAGARA, BATSARI, CHARANCHI, DAN MUSA, DUTSIN-MA, JIBIA, KAITA, KANKIA, KATSINA, KURFI, RIMY, SAFANA, BAKORI, DANDUME, DANJA, FASKARI, FUNTUA, KAFUR, KANKARA, MALUNFASHI, MATAZU, MUSAWA, SABUWA, BAURE, BINDAAWA, DAURA, DUTSI, INGAWA, KUSADA, MAl ADUA, MANI, MASHI SANDAMU AND ZANGO LOCAL GOVERNMENT AREAS OF KATSINA STATE
REPRESENTATION
- B. Wali, ESQ. with him, J. Dappa, ESQ. – for the Appellant
Chief Wole Olanipekun, SAN with him, M. A. Dan Musa, ESQ.; C. Sira Wiwa; S. So. Ibrahim, ESQ.; U. Igunma, ESQ.; I. Usman,ESQ.; N. Idenala, ESQ.; Y. J. Nzuwe, ESQ. and D. S. Malik, ESQ. – for the 1st Respondent
Mr. M. A. Sani, SAN with him, Mr. Dankofa, ESQ. – for the 2nd 8th Respondents
MAIN ISSUES
ELECTION PETITION:- Amendments – Amendment of pleadings in election petition proceedings – Rules governing – Whether those of civil proceedings applicable
ELECTION PETITION:- Election proceedings – Nature of – Need for urgency and precision.
ELECTION PETITION:- Parties to election petition – Necessary party – Who Qualifies as
CONSTITUTIONAL LAW:- Right of appeal – Appeal from decision of the National Assembly/Governorship and Legislative Houses Election Tribunal to the Court of Appeal – When lies as of right – Section 246(1)(b)(ii), 1999 Constitution How exercised
PRACTICE AND PROCEDURE – ACTION:- Parties to an action Parties to election petition – Necessary party – Who qualifies as Section 133(2), Electoral Act, 2002.
PRACTICE AND PROCEDURE – ACTION:- Parties to an action Whether individual persons can be sued as a group without order of court to sue in representative capacity.
PRACTICE AND PROCEDURE – APPEAL:- Brief of argument Reply brief Where appellant fails to file to new points raised in respondent’s brief Effect Whether amounts to admission Order 6, rule 10, Court of Appeal Rules, 2002.
PRACTICE AND PROCEDURE – APPEAL:- Brief of argument Where filed out of time When brief will be discountenanced.
PRACTICE AND PROCEDURE – APPEAL:- Brief of argument – Where notice of appeal is struck out – Effect on brief filed.
PRACTICE AND PROCEDURE – APPEAL:- Briefs of argument – Reply brief – Period within which to file in election matters – How determined – Practice Direction No. 2 of 2003 and Order 6, rule 5, Court of Appeal Rules, 2002 in review
PRACTICE AND PROCEDURE – APPEAL:- Grounds of appeal – Nature and Classification of – Ground challenging exercise of courts discretion – Nature of Whether one of mixed law and fact.
PRACTICE AND PROCEDURE – APPEAL:- Grounds of appeal – Ground from which no issue is distilled – How treated.
PRACTICE AND PROCEDURE – APPEAL:- Grounds of appeal – How couched – What ground of appeal should contain – Need for same not to be argumentative or narrative – Order 3 rule 2, Court of Appeal Rules, 2002 – Effect
PRACTICE AND PROCEDURE – APPEAL:- Issues for determination – Where issue supported by both competent and incompetent grounds of appeal – Duty of court thereto
PRACTICE AND PROCEDURE – APPEAL:- Issues for determination – Proliferation of – Attitude of court thereto – Where not covered by grounds of appeal – Proper treatment
PRACTICE AND PROCEDURE – APPEAL:- Leave to appeal – When necessary to seek and obtain Sections 241 ( 1) and 242(1), 1999 Constitution.
PRACTICE AND PROCEDURE – APPEAL:- Notice of appeal Where invalid Power of court to strike out Where notice of appeal contains no valid ground of appeal How treated
PRACTICE AND PROCEDURE – APPEAL:- Right of appeal – Appeal from decision of the National Assembly/Governorship and Legislative Houses Election Tribunal to the Court of Appeal – When lies as of right – Section 246(1)(b)(ii), 1999 Constitution in review
PRACTICE AND PROCEDURE – COURT:- Rules of court – Need for compliance therewith.
MAIN JUDGEMENT
- T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from National Assembly/Governorship and Legislative House Election Tribunal for Katsina State (the Tribunal for short). The petitioner at the Tribunal and appellant herein was a candidate sponsored by All Nigeria Peoples Party (ANPP) at the Katsina State Governorship election; conducted on the 19th day of April, 2003. The respondent at the tribunal and 1st respondent in this appeal was fielded by the Peoples Democratic Party (PDP) to contest for same office. The latter was declared the winner of the election. The appellant felt aggrieved by that declaration and filed a petition at the tribunal challenging the results with others who conducted the elections who were also sued as co-respondents. The appellant prayed the tribunal to declare him as winner with the highest number of required votes. He asked the tribunal in the alternative for the nullification of the results in the whole or parts of Katsina State where the elections were voided by non-compliance with the law. The 1st respondent entered a conditional appearance on 23rd May 2003. 2nd to 8th respondents entered conditional appearance on 26/5/2003. On 27th May, 2003, 1st respondent filed a reply which contained a preliminary objection and a motion challenging the competence of the petition. On 2nd June, 2003, the petitioner filed a reply to the reply of the 1st respondent. On the same date also, 2nd to 8th respondents filed a reply in which they too, raised objection to the petition. A notice of objection against the competence of the 1st respondent’s appearance/reply/motion on notice dated 28/5/03 was filed by the petitioner on the same 2/6/03.
Earlier on, the petitioner filed a motion on notice on 2nd May, 2003 for leave to deliver interrogatories in writing for the examination of the 2nd respondent. On 28th May, 2003, the petitioner filed a motion on notice for an order granting leave to amend the petition. Another motion for same purpose was filed on 5/6/03.
When the tribunal commenced sitting, some of the motions were withdrawn and struck out. Learned counsel for the petitioner urged the tribunal on 5/6/03 that the motion for amendment filed by him on 5/6/03 and dated 26/5/03 should be taken first on that date. Learned senior counsel for 1st respondent drew the tribunal’s attention to the provision of paragraph 49(5) of First Schedule to the Electoral Act, 2002 (hereinafter referred to as ” the Act”) that it was mandatory for the tribunal to take the preliminary objection dated and filed on 27/5/03. Learned senior counsel for the 2nd to 8th respondents fully associated himself with the submission of learned senior counsel for the 1st respondent. In its ruling, the tribunal overruled learned counsel for the petitioner’s application to be taken first. It directed that the 1st respondent’s application for preliminary objection filed on 27/5/03 was to be taken that morning. It was indeed taken and ruling fixed for 11/6/03. On that date, the tribunal delivered its ruling wherein it held that the petitioner had not complied with the conditions precedent to filing an election petition. The petition was found incompetent and was accordingly dismissed. The tribunal affirmed the election of the 1 st respondent to the office of Governor of Katsina State. It is against the two rulings i.e. that of 5/6/03 and that of 11/06/03 that the appellant filed an appeal to this court. In the notice of appeal filed on 18/6/03, the appellant set out 8 grounds of appeal in respect of the tribunal’s ruling of 11/06/03 and one unnumbered ground of appeal in respect of the ruling of 05/ 06/03.
Four issues were in all distilled by the appellant for the determination of this appeal.
The issues are as follows:
“1. Whether the tribunal was not wrong in admitting inadmissible evidence, excluding admissible evidence and failing to make necessary or adequate findings which resulted in perverse conclusions.
- Whether the lower tribunal was not wrong in holding that the petition was rendered incurably defective having failed to be in substantial compliance with the provisions of the Electoral Act as which left it (sic) without any power or discretion in respect thereof other than to strike out or dismiss the entire petition.
- Whether the 1st respondent’s motion of notice dated 27th May, 2003 praying that the petition of the petitioner of 20th May be struck out or dismissed by the Katsina Governorship Election Tribunal was not incompetent before the tribunal and which rendered all proceedings connected therewith equally incompetent.
- Whether the tribunal members were not rendered incompetent to hear the petition and any issue connected thereto on ground of failure to observe the principle of fair hearing (a) regard to their conduct and utterances during their inaugural sitting and (b) regard to their conduct of the proceedings as well as decisions made in excess of its jurisdiction.”
1st respondent formulated the following four issues:
(i) Considering the state of the petition, the objection taken to it and the provisions of the Electoral Act, 2002, whether or not the lower tribunal was right in dismissing the petition Grounds 2.4.5.6.7 and 8.
(ii) Whether or not the motion filed by the respondent praying for the dismissal/striking out of the petition was competent Ground 3.
(iii) Was the tribunal right in deciding to take the motion of the respondent before the petitioner’s motion for amendment the only ground under the ruling of 5th June, 2003.
(iv) Is it right of the appellant to accuse the tribunal members of bias Ground 1.”
2nd to 8th respondents filed a joint brief in which they adopted the issues formulated by the 1st respondent.
I will adopt the issues formulated by the appellant in treating this appeal. Before then however, it is pertinent to consider the preliminary objections raised by each of the respondents. See Onyekwuluje v. Animashaun and Anor (1996) 3 NWLR (Pt.439) 637, (1996) 3 SCNJ 24. The 1st respondent’s notice of preliminary objection and arguments advanced thereon are contained on pages 2-5 of his brief. The notice thereof reads as follows:
“1.0 Notice of preliminary objection Order 3 rule 15.
1.1 Take notice that before or at the hearing of this appeal, the 1st respondent will by way of preliminary objection pray the court to strike out the entire notice and grounds of appeal dated 17th June, 2003 and filed on 18th June, 2003.
1.2 Take further notice that the grounds of the objection are:
(i) Ground 1 of the grounds of appeal under the heading “ruling dated 11th June, 2003” is incompetent as it is purportedly based on “extract (sic) from counsel’s note of proceedings on the inaugural day of tribunal sitting dated 23rd May, 2003, and not in respect of the ruling or decision of the lower tribunal.
(ii) Ground 2, apart from being a ground of appeal unknown to law also conveys no meaning, while the purported particulars are unnecessarily unwieldy, prolix and argumentative.
(iii) Ground 3 does not derive from the ruling of the lower tribunal and or the particulars supplied thereunder are contradictory to the ground of appeal
(iv) Ground 7 is also unknown to law and or is incompetent.
(v) Ground 8 is also incompetent and not rooted in any precedent, while particular “c” thereunder has no nexus with the ground of appeal.
(vi) The only ground of appeal against the “ruling” of the lower tribunal dated 5th June, 2003, is not cognisable as a ground of appeal and or is not challenging the purported ruling delivered by the lower tribunal on 5th June, 2003.”
(vii) A fortiori, respondent would further pray the court of appeal to strike out all issues formulated in the appellant’s brief on the said incompetent grounds of appeal.
(viii) Issue No.1 as formulated in appellant’s brief have no nexus or bearing with ground 4 (particularly paragraph (f), 5 and 6 which it purportedly covers.”
A closer examination and comparison of the grounds supporting each of the two notices of the preliminary objection as above, shows that the grounds supplied by the 2nd to 8th respondents are, except as herein below quoted, similar and identical. The unidentical ones for the 2nd to 8th respondents are as follows:
“(ix) Issue No.2 of the appellant’s brief is incompetent being completely and unnecessarily argumentative.
(x) Issue No.4 is also incompetent as it does not arise from the ruling being appealed against.”
I will take submissions of respective counsel on the two objections simultaneously. The learned SAN for the 1st respondent submitted that ground of appeal No.1 is in respect of the purported ex-cathedra pronouncement made by some members of the lower tribunal on its inauguration day and extracted from counsel’s notes rather than the record of the tribunal. In like manner, ground 3 is in respect of a purported evidence of counsel for the 1st respondent which is also not borne out by the record. The said grounds, he submitted further, are incompetent. Further, it is counsel’s contention that the Court of Appeal is bound only by the record of proceedings placed before it and extracts from counsel’s minutes do not constitute record of appeal. On the 2nd ground of the notice of appeal learned SAN submitted that it is not a ground recognisable under the Court of Appeal Rules. CBN v. Okogie (2002) 8 NWLR (Pt.768) 48 at 61. Learned SAN argued further that grounds 7 and 8 suffer same effect and that the grounds and their particulars are argumentative, unnecessarily repetitive, unwieldy and prolix. No nexus between ground 8 and its particulars. Jamiyu Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 at 39; Honika Sawmill (Nig.) Ltd. v. Hoff(1994) 2 NWLR (Pt.326) 252 at 262.
The learned SAN argued that the only ground of appeal in respect of the “ruling” delivered on 5/6/03 is not a challenge of the said ruling. Learned SAN urged this court to strike out all the grounds of appeal being incompetent. He relied on Ijeaka v. Erisi (1988) 2 NWLR (Pt.78) 563.
On the appellant’s brief of argument, the learned SAN urged that the brief did not comply with the rules on brief writing. Another objection on the brief is that the brief was filed out of time permitted by the practice direction No.2 issued by the president of this court. It was an act done in vain and the brief constitutes a nullity.
Learned SAN for the 2nd to 8th respondents adopted most of the submissions made by the learned SAN for the 1st respondent. However, on issue No. 1 learned SAN argued that by a careful reading of grounds 4(f), 5 and 6 of the grounds of appeal, it will show that these grounds are not connected howsoever with issue 1. The said grounds should be deemed abandoned as issue 1 did not have any nexus to them. All arguments in respect thereof should be regarded incompetent as well and should be discountenanced. Submitted further is that it is not permissible practice in appellate courts for an appellant to formulate two or more issues from a ground of appeal. He cited and relied on Iyanda v. Laniba II (2003) 1 NWLR (Pt.801) 267 at 292. Issues Nos. 1 and 3 are incompetent and liable to be struck out. Objecting to the competence of issue No.4 of the appellant’ issues, the learned SAN argued that the issue does not relate to any ratio in the ruling of the lower tribunal and neither is it supported by the record. He cited the case of Orugbo v. Una (2002) 16 NWLR (Pt.792) 175, (2002) 9 SCNJ 12 at 29-30. Learned SAN urged us to uphold his preliminary objection.
On 22/07/03, just some hours to the hearing of this appeal, learned counsel for the appellant caused his reply brief to be filed and served. The practice direction No.2 issued by the Hon. President of this court does not provide for the period within which an appellant may file his reply brief. There is therefore a legal lacunae. Where there exists a lacunae, this court is empowered by paragraph 51 of the Act to fall back to the practice and procedure relating to appeals in this court regard being had to the need for urgency on electoral matters. The period prescribed for filing of reply brief in ordinary civil appeal is 14 days see Order 6 rule 5. Filing of such reply brief should be done 3 clear days before the date of hearing the appeal. It is my view that resorting to Order 6 rule 5 of the Court of Appeal Rules, 2002, in an election matter will be unreasonable where the practice direction has stipulated only 3 days for the respondent to file his brief of argument. Of course the objective of the practice direction is for expeditious disposal of election appeals. I do not think, drawing inference from paragraph 7 of practice direction No.2, 2003, that the period within which to file a reply brief in an election appeal should be longer than the period allowed for filing respondent’s brief i.e. 3 days after service on the appellant of respondent’s brief. It was confirmed by the parties that the 1st respondent’s brief was served on the appellant on the 9th day of July, 2003. The appellant filed the reply brief on 22/7/03 a period covering 13 days. This period exceeds the total number of days put together allowed to both the appellant and respondent within which to file and exchange their respective briefs of argument. Although the appellant may have reasons for the delay, no explanation was offered for the tardiness. I think if there is any proceedings that requires utmost urgency and precision, it should be the election matters. Although delay in filing a brief (reply brief in this case) may amount to an irregularity, the mere fact that there is no formal application to regularise, makes it difficult for me to salvage the situation. Appellant’s reply brief is hereby discountenanced. There is therefore no reply by the appellant in respect of all the points raised by both the 1st respondent and the 2nd to 8th respondents. That will amount to an admission and requires no further proof. Evidence Act, section 75, Cap 112,LFN, 1990. Din v. African Newspapers (1990) 3 NWLR (Pt. 139) 392; Nwadike v. Nwadike (1987) 4 NWLR (Pt.65) 394; Obikoya & Sons Ltd. v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157.
I will have found it unnecessary to go into the details of the objections raised by the respondents, but because of the fundamental nature of the objections. As set out earlier in this judgment, the preliminary objections of the 1st and 2nd to 8th respondents were attacking the notice and grounds of appeal and the brief of argument filed by the appellant. It is helpful to note that from the outset, learned senior counsel for the 1st respondent applied to withdraw his objection contained in paragraph 1.3 and of 1.4 of his brief (page 3 of the brief). That objection is for the striking out of the entire appellant’s brief of argument as it was filed out of time and with no leave of court for extension of time to file same. Learned senior counsel realised that the appellant’s brief was filed within time. That objection is accordingly discountenanced. Secondly, learned counsel for the appellant applied to abandon grounds of appeal Nos. 1 and 3. These grounds are hereby struck out. Thirdly, learned counsel for the appellant abandoned issue No.3 of the issues, he formulated as it related to ground 3. Issue 3 from the appellant’s issues in his brief of argument is also struck out. This necessarily means that submissions made by counsel for the parties in their respective briefs in relation to issues 3, are abandoned and accordingly discountenanced. This leaves us now with grounds of appeals Nos. 2,4-8 and a ground (unnumbered) on the ruling delivered on 5/7/03. As in his oral adumbration, learned SAN for the 1st respondent argued that grounds 2-8 are grounds which are unwieldy, argumentative and incomprehensible and are liable to be struck out. Learned SAN referred us also to page 293 of the record of appeal which contains a ground on the ruling of the tribunal delivered on 5/6/03. It is unnumbered and contravenes the provisions of Order 3 of the Court of Appeal Rules. Again no leave was sought and obtained before it was filed. Leave is necessary as the ground is on interlocutory ruling and is of mixed law and fact. We have been urged to strike out this ground for its incompetence.
Learned senior counsel for the 2nd to 8th respondents adopted the arguments of the learned SAN for the 1st respondent and adopted further his arguments contained on page 3 paragraphs (ix) (x). The reply brief filed by learned counsel for the appellant was struck out for non-compliance with prevailing statutory and court rules.
Let me quote herein below sample of the grounds of appeal whose competence is being objected. Ground No.2 of the notice of appeal reads:
“(2) Error in Law
The Katsina State Governorship Election Tribunal was in grave error of law which occasioned serious and self disqualifying miscarriage of justice with a bias of likelihood of bias when, at the end of its Interlocutory Ruling on the 1st respondent’s application by way of motion to strike out the petitioner’s petition it held on page 13 paragraphs 2-4:
“In view of the foregoing coupled with the defects earlier detected in the petition we are of the view that the petition has not disclosed any reasonable cause of action.
In the final analysis, this tribunal is of view that the petitioner has not complied with the condition precedent to filing an election petition. Therefore the petition is incompetent and it is hereby dismissed (emphasis mine) see Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) at p. 622.
“We hereby confirm the Election of Alhaji Umaru Musa Yaradua to the office of the Governor of Katsina State of Nigeria held on the 19th day of April, 2003 as valid.”
Particulars of errors
(a) “Matters are brought before the court to be decided substantively in due course. But occasions usually arise for interlocutory decisions or orders to be given in the meantime. Apart from the exceptional circumstances where issues either of law or procedure may be decided to bring a substantive action to an end without a hearing, interlocutory decisions are to be kept within limited confines within the substantive action. They are not meant to decide the substantive issues. It has been said in several decisions of the Court of Appeal and Supreme court that, in interlocutory proceedings, the trial Judge should refrain from making any finding or pronouncements which tend to go beyond the pale of those proceedings into the substantive action. This is because, doing so that stage goes to prejudice the merits of the substantive action and quite often acts to the prejudice of one or other of the parties. When that happens the Judge has created a perfect atmosphere for disqualifying himself from the case beyond that point. He has reached a decision on substantive issues upon an inappropriate court process and improper procedure. He can no longer reverse himself without compromising the dignity of the court and violating the principles of adjudication. To allow him to continue with the substantive action may amount to a parody of justice.” Fasakin v. Fasakin (1994) 4 NWLR (Pt.340) 597 at 622-623 paragraphs E-A)
(b) The Chairman of the Katsina State National Assembly Election Tribunal Judge Baba delivered the ruling of the tribunal on 10 June, 2003, in Mannir Yakubu v. Umar Ibrahim Tsauri in respect of the 1st respondent’s motion applying for the striking out of the petition for non-compliance with the conditions precedent to filing an election petition and held at p. 10 paragraph 2 that: “In the final analysis, since all the three questions raised have be (sic) answered and they all show non-compliance with the Electoral Act, 2002 it follows that the petition is incompetent before this tribunal. Therefore this motion succeeds and is hereby granted. The petition is hereby struck out.”
(c) A court or Election Tribunal hearing an election petition ought not to grant a prayer or relief not asked for or that which it has no jurisdiction to grant. An election is not qua or a substitute for the Independent Electoral Commission. Section 136 of the Electoral Act, 2002 provides that:
(1) Subject to subsection (2) of this section, if the tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election.
(2) If the tribunal or the court determines that he did not score the majority of valid votes cast at the election, the election tribunal or the court, as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and of this Act.
(3) On the motion of a respondent in an election petition, the election tribunal or the court, as the case may be, may strike out an election petition on the ground that it is now in accordance with the provisions of this part of this Act, or the provisions of First Schedule to this Act.”
The remaining grounds are of no less magnitude. The unnumbered ground on page 293 of the record which is in respect of the ruling of the tribunal of 5/6/03, is couched as follows:
Ruling of the lower court 5th June, 2003. Error in Law
The lower tribunal erred the law (sic) resulting in a grave miscarriage of justice when on 5 June, 2003, it delivered a ruling refusing the petitioner leave to move a motion for the amendment of his petition.
Particulars of Error
(a) A tribunal of justice ought not refused (sic) such application stating in the breath that the applicant was out of time for the amendment as well as stating that there is another motion which was earlier in time to be taken first as the ground for the refusal.
(b) The tribunal has an on faltered (sic) power exercise its discretion within judicious and judicial parameters.
(c) The tenor of the Electoral Act is in favour of sustain (sic) and maintaining rather than derogate from the light of an election petition which is sui generis so far it would not be prejudicial or unjust to other parties.”
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. Azaatse v. Zegeor (1994) 5 NWLR (Pt.342) 76; Ajewole v. Adetimo (1994) 3 NWLR (Pt.335) 739 at 751-752; Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 327; Ndaazoko and 2 Ors. v. Nakariye (1996) 1 MAC 131. I have had a closer examination of all the grounds and their particulars attacked by the respondents. I cannot but agree with the learned SAN for {he 1st respondent that almost all the grounds and their particulars appear unwieldy, argumentative and incomprehensible. Order 3 rules 2, 3 and 4 of the Court of Appeal Rules, 2002 provide:”2(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. (3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent. ” (Italics supplied for emphasis) Thus, a ground of appeal shall contain precise, clear, unequivocal and direct statement of the decision being attacked. It must, in other words, give the exact particulars of the mistake, error or misdirection alleged and a ground of appeal without particulars, save the general or omnibus ground is defective and incompetent. A ground of appeal must not be argumentative or narrative in compliance with the above rules. If it does so, it ceases to be a ground of appeal but an argument or narration whose rightful place in a proceeding of a court or tribunal is at the hearing of the appeal. In no way should the particulars be independent complaints from the appeal itself but auxiliary to it. See Oge v. Ede (1995) 3 NWLR (Pt.385) 564 at 584 -585.
Thus, any grounds of appeal which are argumentative. unnecessarily lengthy, elaborate. vague and which contain detailed reasons may be struck out. Agbaje v. Younan and 7 Ors. (1974) 3 ESCA 66; CBN v. Okogie (2002) 8 NWLR (Pt.768) 48 61.This in my view, is the import of Order 3 rules 2 and 3 of the court’s rules and the particulars supplied in support of grounds 2, 4-8; are in direct conflict with the above order.
Now, turning to the ground of appeal on page 293 of the record of appeal, which is anchored on the ruling of the tribunal of 5/6/03, it is clear that the ground of appeal lacks any number to identify it as such. It offends Order 3 rule (3) quoted above.
By looking at the nature of the rules first above quoted, it appears that compliance therewith is a mandatory requirement and not directory. See Bamgbade v. Balogun (1994) 1 NWLR (Pt.323) 718 at 736 paragraphs E-F. The Supreme Court in the case of C. C.B.(Nig.) Plc. v. A.-G., Anambra State (1992) 8 NWLR (Pt.261) 528 at page 546 paragraphs F-G, per Olatawura, JSC, stated inter alia:
“Rules of court must be obeyed and where there is non-compliance it must be explained otherwise, no indulgence of the court would be granted.”
See further: Solanke v. Somefun (1974) 1 SC 141. That apart, learned SAN for the 1st respondent submitted that the ground in question is a ground of mixed law and fact and no leave was sought and obtained from the tribunal or this court before filing it. He further stated that the ground is not covered by any issue and is thus deemed abandoned. The combined effect of sections 241(I)B and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999, makes it mandatory that where an appeal is interlocutory and or, is on mixed law and fact, the prospective appellant has to seek and obtain leave of the trial or appeal court before he can file his notice and grounds of appeal. Failure to do so renders any notice or grounds of appeal on such matters incompetent and liable to be struck out. See Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458. Again, no issue from the issues formulated by the appellant seems to cover that ground. It is trite law that any ground of appeal which is not covered by an issue for determination is deemed abandoned and liable to be struck out. See Gbafe v. Gbafe (1996) 6 NWLR (Pt.455) 417; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 1 04) 373 at 422; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 157; 101m Bankole and Ors. v. Mojide Pelu and Ors. (1991) 8 NWLR (Pt.221) 523 at 537; UAC (Nig.) Ltd. v. Global Transport SA (1996) 5 NWLR (Pt.448) 291. I see no way to salvage this ground from total collapse. The ground is incompetent and is hereby struck out. This now leaves us with a bare notice of appeal. The position of the law is that a notice of appeal which does not contain at least a valid ground of appeal is a nullity and ought to be struck out. See age v. Ede (supra). Olarenwaju v. BON Ltd. (1994) 8 NWLR 622 at page 627; Akuchie v. Nwamadi (1992) 8 NWLR (Pt.258) 214 at page 223; Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at page 296. Under Order 3 rule 2(7) of the Court of Appeal Rules, the court has power to strike out an invalid notice of appeal when an appeal is not competent or for any other sufficient reason.
The notice of appeal is hereby struck out.
I do not think there is any need for me to consider the 2nd arm of the objection as it deals with the competence of the brief of argument filed by the appellant. There has to be an appeal first before there can be a brief. All the ground of appeal have been found to be incompetent. They were all struck out. Consequent upon that, the notice of appeal was struck out and there is no appeal. There is nothing for me to consider as a brief whether competent or incompetent.
In the final result, I hereby sustain the preliminary objections raised by the respondents. This certainly disentitles me to go into the merit of the appeal filed.
The appeal is hereby struck out. I make no order as to costs.
MUKHTAR, J.C.A.:
I have read in advance the leading judgment delivered by my learned brother Muhammad, JCA. I would however by way of emphasis deal with the preliminary objections raised by all the respondents. On the objection on ground (1) of appeal, learned counsel for appellant took the correct stance by withdrawing the said ground (1) and then (3) of appeal. Ground (2) of appeal is, to say the least, a brief of argument by itself, and this has offended the provision of Order 3 rules 2(3) and (4) of the Court of Appeal Rules, 1981 as amended. Ground (8) of appeal is also definitely incompetent, because some of the particulars thereunder are not related to the ground, but are detailed reproduction of excerpts from a judgment. As for the ground immediately after ground (8), it has in the first place not been numbered as is required by the provision of Order 3 rule 2(3) of the supra rules which states:
“(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”.
Secondly, the ground is one against a ruling of the lower tribunal, and is not one of law simpliciter, which therefore requires leave of either the lower tribunal or this court, as per the provisions of sections 241(1) and (2) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria. In fact, assuming that the ground is one of law simpliciter, particular (b) talks of the exercise of discretion of the tribunal. I believe this ground as a whole is based on the refusal of the tribunal to take the appellant’s motion for amendment first before taking the 1st respondent’s motion on notice for amendment. As such, it is a ground on the exercise of the tribunal’s discretion, which definitely requires the leave of court. See Aliyu v. lbrahiln (1997) 2 NWLR (Pt.489) 571 at 582.
At any rate, the law does not allow for such amendment at the stage learned counsel sought to effect the amendment. See paragraph (14) to Schedule (1) of the Electoral Act, 2002. In the absence of leave, for the above reasons, the ground is incompetent and deserves to be struck out. Grounds (2) and (8) are also hereby struck out, leaving grounds (4), (11), (6) and (7) of appeal.
The issues for determination formulated in the appellant’s brief of argument are, if not out rightly incompetent, inelegant and defective. It is trite that a ground of appeal cannot cover more that one issue. See Santana Medical Service Ltd. v. N.P.A. (1999) 12 NWLR (Pt.630) 189. Whereas an issue can be covered by more than one ground of appeal, the contrary obtains conversely. The court has on many occasions frowned at proliferation of issues. See Yakaje v. Haire (2003) 10 NWLR (Pt.828) 270 and Araka v. Ejeugwu (1999) 2 NWLR (Pt.589) 107. On issues Nos. (1) and (2) in the appellant’s brief of argument, even though they cover grounds of appeal Nos. (4), (5) and (6) simultaneously (which is not permitted by the law), I will consider them hereunder, for what they are worth. Issue (1) covers grounds of appeal Nos. 3, 4(e) (f), 5 and 6 of appeal. Ground of appeal No. (3) has been abandoned by learned counsel for the appellant, so it is inconsequential now. Ground (4)(e) and (f) this is novel to me, for I cannot fathom how issues can cover particulars of a ground and not the ground as a whole. I find this very clumsy and impracticable. Apart from issues (1) and (2) being defective for covering grounds (4) and (6) of appeal simultaneously issue (1) also covers ground (11) of appeal which has not been struck out, ‘so if I am wont to carry out a surgical operation, (which Salami, JCA says is not the function of this court in Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129), issue one might just survive in relation to ground of appeal No. (5).
That is if it is not struck out because it, together with issue (2) coyer some same grounds. The same argument goes for issue (2), which might have another competent ground of appeal No. (7) to cover it. But ground of appeal No. (8) is already struck out, by this court, for incompetence. Issue (3) is also incompetent, as the ground of appeal No. (3) to which it is related has also been struck out at the instance of learned counsel for the appellant. The fourth issue for determination also has no ground to cover it, as grounds (1) and (2) purportedly covering it have been struck out at the instance of learned counsel for the appellant and the court respectively. An issue that has no ground of appeal covering it is a non issue and needs to be struck out, as it is settled law that issues are distilled from grounds of appeal, as they derive their source from thereunder. See A.C.B. Plc. v. Emedo (2003) 10 NWLR (Pt. 828) 244, Ike v. Enang (1999) 5 NWLR (Pt.602) 261 and Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175. Likewise, arguments covering issues that are struck out should and be discountenanced, as they have no foundation to stand on. That is the position of the law. See Ozobia v. Anah (1999) 5 NWLR (Pt.601) 1.
Learned Senior Advocate of Nigeria for the 1st respondent has in his oral argument in court referred the court to relief No. (2) in the notice of appeal, which he submitted should be discountenanced as the law does not permit the court to do so. I agree with learned SAN, for this is not an ordinary proceedings, in which a party can seek for amendment of pleadings at any stage of proceedings, even in the Supreme Court. See Jessica Trading Co. Ltd. v. Bendel Ins. Co. Ltd. (1993) 1 NWLR (Pt.271) 538, and England v. Palmer (1955) 14 WACA 659. This is an election proceedings which is governed by the Electoral Act, 2002 and which because of its peculiarity must be disposed off with utmost Urgency. Time is of essence and once a court dilly dallys with the proceedings then the purpose becomes defeated, which brings me to the appellant’s reply brief which was filed on 22/7/03, a day before the hearing of this appeal. The practice direction No.2 of 2003 does not provide for filing of appellant’s reply brief of argument, but then if it was to do so, I don’t think it will provide for a period more than the period allowed for the filing of the appellant’s brief of argument and the respondent’s brief put together i.e. more than 5 x 3 days, which in total is 8 days. As it is, the period from when the appellant was served with the 1st respondent’s brief of argument far surpasses the period allowed for the aforementioned briefs. I cannot fall back on the provision of Order 6 rule (5) of the Court of Appeal Rules (supra) either, as urgency is the key word in election petition appeals. At any rate, me think if the practice direction wanted to accommodate such reply brief, it would have so stipulated. In the circumstance, the appellant’s reply brief is discountenanced, and as can be seen from above,
I have not considered the said brief.
With the above contribution, I am in complete agreement with the reasoning and conclusion reached in the lead judgment.
OBADINA, J.C.A.:
I have had the privilege of reading in advance the judgment of my learned brother I. T. Muhammad, JCA, just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be struck out. Assuming for the sake of argument the grounds of appeal are competent, I may wish to add a few words by way of emphasis, on the issues raised in the appeal.
Issue No.2 raised by the appellant reads as follows:
“Whether the lower Tribunal was not wrong in holding that the petition was rendered incurably defective having failed to be in substantial compliance with the provisions of the Electoral Act, which left it without any power or discretion in respect thereof other than to strike out or dismiss the entire petition.”
In arguing the issue, the learned counsel to the appellant referred to the petition and argued that the enumeration or serialisation of 5th 8th respondents wherein other groups of respondents were lumped up, was at worst a curable irregularity whose resulting inelegance ought not to defeat the petition. He said the tribunal was wrong when it refused to consider the lumping up of the respondents serialised or enumerated who were the 5th to 8th respondents as a mere irregularity that could be rectified. He submitted that the tribunal’s findings, conclusions and striking out of the 5th 8th respondents were perverse and urge the Court of Appeal to reverse it.
A cursory look at the petition filed by the appellant before the tribunal shows that the appellant lumped together all the Electoral Officers in 34 Local Governments of Katsina State as the 5th respondent. He also lumped together all the returning officers in the 34 Local Governments of the State as the 6th respondent. Similarly, the returning officers of all the wards in all the 34 Local Government of the State were lumped up together as the 7th respondent while the presiding officers of all the polling stations and units in all the 34 Local Governments of the State were again lumped up together as the 8th respondent. There is no evidence that the appellant sought for and obtained the order of the tribunal to sue each of the groups of the respondents in a representative capacity. Having lumped 34 individual persons together as a group for the purpose of being sued, they became non-juristic and the order of the tribunal to sue them in a representative capacity must be sought and obtained. Therefore I agree with the submission of the learned counsel for the 1st respondent that our laws and indeed the Electoral Act, 2002 do not permit of amalgamation of persons to one juristic personality capable of being sued or be sued.
The learned counsel for the appellant was of the view that the lumping of the groups of persons was at worst a curable irregularity. On becoming aware that the 5th 8th respondents were not juristic persons after a notice of preliminary objection has been raised by the 1st respondent, the learned counsel to the appellant by a motion dated 26/5/2003, prayed for an order of the tribunal to amend the petition in accordance with the schedule of amendment attached to the said application, wherein the groups of persons lumped together as the 5th 8th respondents were separated. The learned counsel to the appellant then insisted that the application for amendment should be heard before the notice of preliminary objection dated 27/5/2003 raised by the respondents against the petition. The learned tribunal refused to hear the application for amendment before the preliminary objection. The objection was heard and upheld. The learned counsel to the appellant complained that the tribunal was wrong in hearing the notice of objection: first and striking out the petition instead of hearing the motion to amend the petition.
Paragraph 49(5) of the First Schedule to the Electoral Act, 2002 makes it mandatory that once an objection is brought challenging the regularity or competence of an election petition, the objection shall be heard and determined before any further steps in the proceedings. For clarity purposes, paragraph 49(5) of the First Schedule to the Act reads as follows:
“49(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”
In view of the provisions of paragraph 49(5) of the First Schedule aforesaid, the tribunal must hear and determine the preliminary objection filed on 27/5/2003; and I think the tribunal was right to have taken the objection first.
As indicated earlier, the 5th-8th respondents are group of persons lumped together as 5th 8th respondents. Each of the groups having been lumped together as a respondent without the leave of court to be sued in a representative capacity, is non-juristic. In the circumstances, it is my view that the 5th 8th respondents were not properly before the tribunal and were liable to be struck out. In that regard, I am of the firm view that the 5th 8th respondents were properly struck out of the petition.
Section 133(2) of the Electoral Act specified statutory respondents to an Election Petition. It says:
“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
The 2nd respondent, namely, ‘The Resident Electoral Commissioner’ does not seem to fall among the statutory respondents. He is not the returning officer for governorship election. Section 17(2)(g) specifies the returning officer for governorship election. It says:
“(2) Results of all the election shall be announced by :
(a)
(b)
(c)
(d)
(e)
(f)
(g) The Resident Electoral Officer at the Governorship Election.”
Resident Electoral Commissioner is not the same as Resident Electoral Officer. Section 133(2) of the Electoral Act, makes it mandatory that a statutory respondent shall be joined in the petition in his or her official status. A ‘Commissioner’ is certainly not in the same status with an ‘Officer’.
Similarly, the 3rd respondent is also not an officer known to the Electoral Act, 2002. Section 17 of the Electoral Act, 2002 prescribes the names of the officers that shall be involved in the conduct of an election; while sections 51 and 52 of the Act highlight the functions of the presiding officer. A close and critical look at the petition in the instant case seems to show that apart from the 1st respondent, proper statutory respondents were not joined in the petition. In that regard I am of the view that the 2nd-8th respondents are not properly before the tribunal and were accordingly properly struck out by the tribunal.
Furthermore, paragraph 4(1) of the First Schedule to the Electoral Act, 2002 specified what an election petition under the Act must contain. It says:
“4(1) An election petition under this Act shall:
(a) Specify the parties interested in the petition.
(b) Specify the right of the petitioner to present the election petition;
(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”
In a recent case of th~ Supreme Court, namely, General Muhammadu Buhari & Ors. v. Alhaji Mohammed Dikko Yusuf & Ors., (2003) 14 NWLR (Pt.841}446, the Supreme Court, per Uwaifo, JSC reiterated the need for a petitioner under the Electoral Act, 2002, to comply with the provisions of paragraph 4(1) of the First Schedule to the Electoral Act, 2002. He said at page 23 of the judgment, inter-alia as follows:
“It is manifest that section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the mandatory respondents envisaged under sub-section (2) as identified in this judgment. As a matter of strict adherence to procedure, all such persons or political parties can neither be respondents nor are they necessary parties. Paragraph 4(1)(a) and (c) and paragraph 45 of the First Schedule to the Act do not warrant any other interpretation being given to section 133(2). In respect of paragraph 4(1)(c), it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition. Such particulars shall be in respect of candidates who were validly nominated and who upon that basis contested the election, not any other candidates upon whom votes were wasted.”
From the above dictum of the learned Justice of the Supreme Court it is mandatory for a petitioner to state in his petition the holding of the election, the scores of the candidates, including the candidates who lost the election, and the person returned as the winner of the election. In other words, while there is no obligation on the petitioner to join any candidate who lost an election as a party, the petitioner has a duty to comply with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, by stating among other particulars, the scores of all the candidates that participated in the election.
A careful and critical perusal of the petition filed by the petitioner/appellant clearly shows that the petitioner/appellant stated in paragraph l(c) and 3(c) of the petition only the scores of two of the candidates, namely Engr. Mohammed Nur Khalil i.e. the petitioner/ appellant and Alhaji Umaru Musa Yar Adua, the 1st respondent, out of the six (6) candidates that contested for the Governorship of Katsina State. Even if the petitioner did not make the other four candidates who lost the election respondents to the petition, the petitioner had it a duty to state clearly in his petition, the scores won by each of those co-contestants at the election. The failure of the petitioner to so state the scores of the other co-contestants contravenes the mandatory provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002 and it renders the petition incompetent.
It seems to me that no matter from which angle one looks at the petition, the petition is incurably defective and should be struck out. For the foregoing reasons and the fuller reasons contained in the lead judgment, I agree with my learned brother I. T. Muhammad, JCA, that the appeal is unmeritorious and should be struck out. I too strike out the appeal and abide by the consequential orders contained in the judgment.
THOMAS, J.C.A.:
I have read in advance the lead judgment of my learned brother, Muhammad, JCA, which has just been delivered, and I entirely subscribe to the reasons and the conclusion reached therein.
There is no doubt, the right to appeal from the decision of the National Assembly/Governorship and Legislative House Election Tribunal to the Court of Appeal, is a constitutional right. Section 246(1 )(b )(ii) of the Constitution of the Federal Republic of Nigeria, 1999, provides as follows:
“246(1)An appeal to the Court of Appeal shall lie as of right from
(b) Decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunals on any question as to whether
(i) . . … . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .
(ii) Any person has been validly elected to the office of Governor or Deputy Governor, or … ”
But in the exercise of his constitutional right as quoted above, an appellant ought to have complied strictly not only with the Electoral Act, 2002 especially as it relates to the manner of presentation of his petition to the tribunal or to)1he Court of Appeal, but should also comply with the Court of Appeal Rules and the Practice Directions made by the Hon. President of the Court of Appeal pursuant to section 285 of the 1999 Constitution and section 137 of the Electoral Act, 2002.
In this appeal, the appellant did not comply at the tribunal be low, with the mandatory requirement of paragraph 4(1)(a) and (c) of the First Schedule to the Electoral Act, 2002. The respondents, i.e. 1st 8th respondents before the Governorship Election Tribunal, came by way of motion on notice, filed and argued preliminary objections challenging the competency of the petition. They urged for the dismissal or striking out of same. The preliminary objection was sustained and the petition was dismissed. The election and return of 1st respondent was confirmed by the tribunal, and hence the appeal.
The appellant filed his notice of appeal containing 8 grounds and the other last ground is unnumbered. Briefs have been duly filed. 1st respondent filed a preliminary objection to the whole grounds of appeal and the issues raised from the grounds. The 2nd 8th respondents also raised similar or identical preliminary objections to the competence of the grounds and a fortiori to the competence of the four issues formulated therefrom.
Arising from the forceful submissions of learned Senior Advocate for the 1st respondent to which learned Senior Advocate for the 2nd 8th respondents aligned himself learned counsel for the appellant in reply, applied to withdraw their grounds 1 and 3 and these grounds were struck out including issue number 3 formulated from them.
I am of the view that two issues cannot be formulated from one ground of appeal as done by learned counsel for the appellant in respect of ground 4. In his brief, appellant’s counsel at page 1 stated that issue number 1 covers ground 3, (which has been withdrawn) 4(e)(f),5 and 6; and issue No.2 covers grounds 4, 6, 7 and 8. It is thus very clear that ground 4 of the grounds of appeal has been fragmented to cater for two (2) issues. This is strictly forbidden in brief writing. See Iyenda v. Laniba II (2003) 1 NWLR (Pt.801) 267. I am of the view that ground 4 is equally incompetent and is discountenanced.
The appellant has failed to comply with paragraph 5 of the practice direction No.2 of 2003, that states thus:
“5. Within a period of 5 days after the service of the record of proceedings, the appellant shall file in the court and serve all the respondents a written brief, being a succinct statements of his argument in the appeal. ” (Italics mine)
With due respect to the learned counsel for the appellant, issue No. 1 formulated in his brief has no nexus to the grounds 4(f), 5 and 6.
This is borne out by the way the issue was framed. It reads:”Whether the tribunal was not wrong in admitting inadmissible evidence, excluding admissible evidence and failing to make necessary or adequate findings which resulted in perverse conclusions.”
The appellant has equally failed to file his reply brief within the time frame provided by Order 6 rule 5 and rule 10 where it is provided thus:
“Order 6 rule 5 The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief but not later than three clear days before the date set down for the hearing of the appeal, file and serve or cause to be served on the respondents a reply brief which shall deal with all new points arising from the respondent’s brief” (Italics are mine for emphasis only)
“rule 10
Where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief” (Italics mine)
It is not in dispute that the appellant’s reply brief, is dated and filed 22nd July, 2003, while the hearing date is 23rd July, 2003 just barely a day to the date fixed for hearing the appeal. It is therefore caught by Order 6 rule 10 of the Court of Appeal Rules, 2002; thus the appellant is deemed to have conceded to the points raised in the preliminary objection by the respondents to the effect that all the remaining grounds of appeal and the issues formulated therefrom are all incompetent; and I so hold.
Any facts admitted in a pleading or issues raised in preliminary objection and admitted by the other party need no more proof. See S. 75 Evidence Act; Din v. African Newspapers (1990) 3 NWLR (Pt. 139) 392, Utteh v. State (1992) 2 NWLR (Pt. 223) 257.
For the above reasons and the fuller reasons given in the lead judgment, I find the 1st, 2nd-8th respondents’ preliminary objections to be well founded. They are sustained. The appeal is struck out for incompetence. I also make no order as to costs.
OGBUAGU, J.C.A.:
I had the advantage of reading before now, the judgment of my learned brother, Muhammad, JCA just delivered. .I adopt the same while agreeing with his reasoning and conclusions.
However, by way of contribution, the notice of preliminary objection which led to the ruling of 5th June, 2003 and which gave rise to the instant appeal, is dated 27th May, 2003 and it was filed on the same date; while the application for amendment filed by the appellant, is dated 26th May 2003, but was filed on 5th June, 2003.
Now, there is the clear and unambiguous statutory provisions of section 49(5) to the First Schedule of the Electoral Act, 2002 (hereinafter called “the Act”). It provides as follows:
“An objection challenging the regularity or competence of an election petition shall be heard and detern1ined before any further steps in the proceedings if the objection is brought immediately the defect on the fact of the election petition is noticed.” (Italics mine)
The above provision undoubtedly therefore, is mandatory. To be noted, is that the said objection/challenge, was first in time and was filed before the filing of the motion/application for an amendment. Although the said application to amend, is dated 26th May, 2003, it was filed cn the morning of 5th June, 2003, the very day the hearing of the notice of preliminary objection, was coming up.
Thus, in the light of the said mandatory provision of section 49(5) to the said First Schedule of the Act, the tribunal had no choice/ option. It fully recognised and applied the law. It’s ruling, is nothing other than giving effect to the said statutory provision. That ruling, in my respectful view, cannot be faulted.
Now, the tribunal thereafter, heard arguments from learned counsel for the 1st respondent and the appellant. It reserved its ruling in respect thereof, till/to 11th June, 2003 on which date, in well considered ruling, it upheld the objection and dismissed the petition and also relying on the case of Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622 CA. It confirmed the election of the 1st respondent.
Assuming that the tribunal had a discretion in the subject-matter leading to the said ruling of 11 th June, 2003, it is firmly settled in a line of decided authorities, that in an interlocutory appeal, when the ground of appeal is a challenge of the trial court’s exercise of discretion, as appears to be the case in the instant appeal, such a ground of appeal, is classified as a ground of mixed law and fact and leave of court ought to be first had and obtained. See Alhaji Aliyu v. Alhaji lbrahim & Sons (1997) 2 NWLR (Pt.489) 571 at 582, para. G-H C.A. Citing some other cases in respect thereof. There is no such leave applied for or obtained.
In concluding this judgment, I too, uphold the preliminary objection in respect of this appeal. Since there is just a notice of appeal without any competent ground, this appeal is also struck out by me.
I also make no order as to costs.
Appeal struck out
Cases Referred to in the Judgment:
A.C.B. Plc. v. Emedo (2003) 10 NWLR (Pt. 828) 244
Agbaje v. Younan and 7 Ors. (1974) 3 ESCA
Ajewole v. Adetimo (1994) 3 NWLR (Pt.335) 739 at 751-752;
Akuchie v. Nwamadi (1992) 8 NWLR (Pt.258) 214
Aliyu v. Alhaji lbrahim & Sons (1997) 2 NWLR (Pt.489) 571
Araka v. Ejeugwu (1999) 2 NWLR (Pt.589) 107.
Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129
Azaatse v. Zegeor (1994) 5 NWLR (Pt.342) 76;
Bamgbade v. Balogun (1994) 1 NWLR (Pt.323) 718
Bankole and Ors. v. Mojide Pelu and Ors. (1991) 8 NWLR (Pt.221) 523
Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 327;
C.C.B. (Nig.) Plc. v. A.-G., Anambra State (1992) 8 NWLR (Pt.261) 528
CBN v. Okojie (2002) 8 NWLR (Pt.768) 48 61.
Din v. African Newspapers (1990) 3 NWLR (Pt. 139) 392;
England v. Palmer (1955) 14 WACA 659
Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622
Fasakin v. Fasakin (1994) 4 NWLR (Pt.340) 597
Gbafe v. Gbafe (1996) 6 NWLR (Pt.455) 417
General Muhammadu Buhari & Ors. v. Alhaji Mohammed Dikko Yusuf & Ors., (2003) 14 NWLR (Pt.841}446,
Guda v. Kitta (1999) 12 NWLR (Pt.629) 21
Honika Sawmill (Nig.) Ltd. v. Hoff(1994) 2 NWLR (Pt.326) 252
Ijeaka v. Erisi (1988) 2 NWLR (Pt.78) 563.
Ike v. Enang (1999) 5 NWLR (Pt.602) 261
Iyanda v. Laniba II (2003) 1 NWLR (Pt.801) 267
Jamiyu Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536
Jessica Trading Co. Ltd. v. Bendel Ins. Co. Ltd. (1993) 1 NWLR (Pt.271) 538,
John Bankole and Ors. v. Mojide Pelu and Ors. (1991) 8 NWLR (Pt.221) 523
Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458.
Ndaazoko and 2 Ors. v. Nakariye (1996) 1 MAC 131
Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285
Nwadike v. Nwadike (1987) 4 NWLR (Pt.65) 394;
Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 1 04) 373
Obikoya & Sons Ltd. v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157.
Oge v. Ede (1995) 3 NWLR (Pt.385) 564 at 584 -585.
Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175.
Olarenwaju v. BON Ltd. (1994) 8 NWLR 622
Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130
Onyekwuluje v. Animashaun and Anor (1996) 3 NWLR (Pt.439) 637, (1996) 3 SCNJ 24
Orugbo v. Una (2002) 16 NWLR (Pt.792) 175, (2002) 9 SCNJ 12
Ozobia v. Anah (1999) 5 NWLR (Pt.601) 1
Santana Medical Service Ltd. v. N.P.A. (1999) 12 NWLR (Pt.630) 189.
Solanke v. Somefun (1974) 1 SC 141
UAC (Nig.) Ltd. v. Global Transport SA (1996) 5 NWLR (Pt.448) 291.
Utteh v. State (1992) 2 NWLR (Pt. 223) 257.
Yakaje v. Haire (2003) 10 NWLR (Pt.828) 270
