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Home » Nigerian Cases » Court of Appeal » Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SAIDU TANKO HUSAIN, J.C.A. 

This appeal is one of the several appeals emerging from the Judgment delivered at Federal high Court Holden in Abuja on the 27th June, 2015 in Suit No.FHC/ABJ/CS/71/2016 between DR. SAMPSON UCHECHUKWU OGAH VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS. Coram: Hon. Justice O. E Abang.

The 2nd respondent, the Peoples Democratic Party (PDP) had on the 8th December, 2014 organized and supervised the conduct of the PDP Primaries, the purpose of which was to elect the candidate for the Gubernatorial Elections for Abia State which was conducted on the 11th April, 2015. Members of the Peoples Democratic Party (PDP) who participated in the primaries as contestants include Sir Friday Nwanozie Nwosu, the appellant, Dr. Sampson Uchechukwu Ogah, the 1st respondent, and DR. Kezie Victor Ikpeazu, the 3rd respondent among others.

The 1st respondent had cause to raise issues generally relating to the conduct of the primaries and in particular the nomination of the 3rd respondent as the candidate for Governorship election on the platform of the Peoples Democratic Party.

Apparently not satisfied with the manner the People Democratic Party (PDP) hierarchy handled his complaints, the 1st respondent headed for the court where he commenced action on the 26th March, 2015 at the Federal High Court, Umuahia as plaintiff.

By the Originating Summons (as amended) filed, first as Suit No. FHC/UM/CS/94/2015 at the said court and now Suit No. FHC/ ABJ/CS/71/2016, the Plaintiff claimed several reliefs as set out in the Originating Process as amended. I will endeavor to reproduce those claims or the reliefs sought by him at the trial court especially so that parties have made references to the reliefs in their briefs of argument. The reliefs are reflected on the printed record of Appeal at pages 190-196 particularly pages 194- 196 thus:

(1) A declaration that Dr. Okezie Ikpeazu (the 2nd defendant) was not eligible nor qualified to be nominated or to participate or take part in the gubernatorial election for Abia State conducted by the Peoples Democratic Party and her officers on the 9th day of December, 2014 which the Plaintiff, Dr. Okezie Ikpeazu (the 2nd defendant) and others participated as aspirants.

(2) A declaration that Dr. Okezie Ikeazu not being qualified to be nominated or to participate or take part in the Peoples Democratic Party Gubernatorial Party Primary Election on 8th December, 2014 is not the aspirant scored in law and on facts, the highest number of votes cast in the Peoples Democratic Party Primary election conducted pursuant to section 87(4) (B) (i) and (ii) of the Electoral Act 2010 (as amended) and part IV, Article 14 (a) of the Peoples Democratic Party (PDP) Electoral Guideline 2014.

(3) A declaration that the votes allegedly scored by Dr. Okezie Ikpeazu in the Peoples Democratic party Primary Election for aspirants to the gubernatorial election for Abia State on 8th December, 2014 are wasted votes, null, void and non of the defendants is entitled to act on the scores credited to Dr. Okezie Ikpeazu (the 2nd defendant) based on the said Peoples Democratic Party Primary Election which Dr. Okezie Okpeazu (the 2nd defendant) abinitio is not qualified to be nominated or participated in the said Primary Election.

(4) An order declaring the Plaintiff, (Dr. Sampson Uchechukwu Ogah) as the aspirant in the Peoples Democratic Party Election for aspirants conducted by the Peoples Democratic Party on 8th December, 2014 as the aspirant that scored the highest number of votes cast for aspirants in which the Plaintiff, Dr. Okezie Ikpeazu and others participated as aspirants pursuant to section 87(4) (B) (i) and (ii) of the Electoral Act and Article 14 (a) of the Peoples Democratic Party Electoral Guideline for 2014.

(5) An order that the plaintiff being the aspirant that scored the highest number of lawful votes cast in the Peoples Democratic Party Primary election for gubernatorial aspirants in Abia State conducted on 8th December, 2014, it is the Plaintiff that is entitled to be nominated and is the nominated candidate of Peoples Democratic Party in the Gubernatorial election in Abia State for the 2015 general election schedule to take place on 11th April, 2015, pursuant to Section 87(4)B(i) and (ii) of the Electoral Act 2010 (as amended) and article 14 (a) of the Peoples Democratic Party Electoral Guideline 2014

(6) An order pursuant to section 87(4)B(i) and (ii) of the Electoral Act 2010 (as amended) and Article 14(a) of the Peoples Democratic Party Electoral Guideline 2014 for the 1st defendant (Peoples democratic Party) to submit the name of the plaintiff to the 3rd defendant (Independent National Electoral Commission) as the Gubernatorial candidate of People Democratic Party, in the gubernatorial election for Abia State in the 2015 general election schedule for 11th April 2015 and for the 3rd defendant (Independent National Electoral commission) to accept the name of the plaintiff as the candidate of the Peoples Democratic Party for the 2015 gubernatorial election in Abia State.

(7) An order mandating the 3rd defendant (INEC), pursuant to 87(4) B (ii) and 34 of the Electoral Act 2010 (as amended) to accept and to publish the name of the plaintiff as the candidate of Peoples Democratic Party for the gubernatorial Election for Abia State in the 2015 general election fixed for 11th April, 2015.

(8) In the event that the above suit is not determined before the conduct of the general election in 2015 to the gubernatorial Election for Abia State then a consequential order that the plaintiff is the candidate of the 1st defendant in the 2015 gubernatorial election in Abia state pursuant to Section 87 (4) B (i) and (ii) of the Electoral Act and article 14 (a) of the PDP Electoral Guideline 2014 is the person entitled to the Certificate of Return (in the event the election is won by Peoples Democratic Party) in the election for the office of Governor of Abia State fixed for 11th April, 2015.

(9) An order that the Certificate of Return for the election to the gubernatorial election for the Abia State in the event that the election is won by the 1st defendant (Peoples Democratic Party) be issued to the Plaintiff as well as all entitlements of the plaintiff as the elected Governor of Abia State of Nigeria upon a favourable determination of the above suit in favour of the plaintiff.

(10) A declaration that the information supplied by Dr. Okezie Ikpeazu in Form CF001 and sworn to by Okezie Ikpeazu in the affidavit submitted to the 3rd defendant (INEC) by the 2nd defendant) (Dr. Okezie Ikpeazu) pursuant to section 31 (2) of the Electoral Act 2010 (as amended) is false.

(11)An order pursuant to Section 31 (4) (5) and (6) of the electoral Act 2010 (as amended) disqualifying the 2nd defendant (Dr. Okezie Ikpeazu from contesting the gubernatorial election for Abia State as the candidate of the Peoples Democratic Party.

(12) AND upon the candidate of the Peoples Democratic Party, an order compelling the 1st and 3rd defendant to replace or forward the name of the Plaintiff as the candidate of PDP or the candidate of the People Democratic Party returned in the gubernatorial election for Abia State in the event the election is won by People Democratic party or order that the name of three plaintiff be the candidate of the 2nd defendant in the 2015 general election conducted, to be conducted or conducted by the 3rd defendant.

(13) An order that at all material times since the conduct of the Peoples Democratic Party Election on 9th December, 2014 to the date of delivery of the Judgment of this court, he remained and shall remain the candidate of the Peoples Democratic Party in the 2015 gubernatorial election

It is important to state here that the appellant at the inception of the case not a party to the proceedings at the Federal High Court, Umuahia. But following the order made on the 7th July, 2015 the appellant, Sir Friday Nwanozie Nwosu was joined as the 4th defendant to the Suit on the application earlier made by him. This application, a Motion on Notice is on the record at pages 98 – 110 of the printed record of Appeal.

As a consequence to the order joining the appellant the court below on the said date also made an order and directed on the 1st respondent to amend his originating papers ostensibly to reflect the appellant as a party and indeed as the 4th defendant to the Suit. The appellant like other defendants, upon the receipt of the Summons (as amended) contested the Suit and in the course of hearing, by way of Motion on Notice filed by him, he sought for an order striking out the suit on account of the same not being competent and the suit being an abuse of Judicial process in the light of the existence of the Suit which he said was earlier in point of time and filed by him as Suit No.FHC/OW/CS/191/2015 and which the 1st respondent was a party.

Those objections notwithstanding, the trial court overruled him and proceeded to deliver Judgment on the 27thJune, 2016 granting the prayers the 1st respondent had sought and the further made certain consequential orders as at pages 1312-1313 of the printed record, vol. 2 as follows:-

“1. Consequential orders is hereby made to give effect to the Judgment that the plaintiff Dr. Sampson Uchechukwu Ogah is the candidate of the People’s Democratic Party in 2015 gubernatorial election in Abia State and is the person entitled to the Certificate of Return in the election for the office of Governor of Abia State of Nigeria for the elections held on 11th April, 2015

  1. It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3’d Defendant herein shall forthwith issue Certificate of Return to the Plaintiff Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlement to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State. Cost of N100,000.00 is hereby awarded in favour of the plaintiff payable by the defendants jointly and or severally I so hold”

Not satisfied with the decision or Judgment and order of the trial court, the appellant has appealed to this court. He filed three Notices of Appeal.

The first is the Notice of Appeal dated and filed on the 29th June. 2016, barely two (2) days after the delivery of Judgment. In it is incorporated 9 (nine) Grounds of Appeal with all the particulars of error or misdirection provided as per the printed record of Appeal at pages 1339- 1347, vol. 2.

The second, that is the Notice of Appeal dated the 11th July, 2016 and filed on the 12th July, 2016 is subsumed at pages 1-15 of the supplementary record of appeal transmitted to this court on the 25th July, 2016. The said Notice contains 17 (Seventeen) Grounds of Appeal together with their particulars.

The third Notice of appeal, also incorporated in the same supplementary record of appeal at pages 16-30, has 17 (seventeen) Grounds of Appeal and particulars. I will stop here for a while and resume later on the question as to which among the three Notices of Appeal, the appellant has relied on. This is in the light of the objection taken by counsel for the, 1st respondent. It suffices to say for now that briefs of argument were filed and exchanged wherein counsel formulated a number of Issues for determination in their respective briefs of argument.

In the brief of argument dated and filed on behalf of the appellant on 26th July, 2016 the following 5 (five) issues were distilled at pages 3-4 thus;-

Issue 1; Locus Standi

Whether in the circumstances of this case the learned trial Judge was wrong to hold that the 1st respondent has the locus standi to institute the suit at the lower.

Issue 2: Abuse of Court Process

Whether suit No.FHC/ABJ/CS/71/2016 filed on 26/3/2015 by the 1st respondent and Suit No. FHC/OW/CS/191/2015 filed by the Appellant on the 2nd March, 2015 and served on the 1st respondent on the 11th day of March, 2015 and on the 11th day March, 2015 are not between the same parties, the same subject-matter and on the same issue for the 1st respondent’s present suit to constitute an abuse of Court Process and thereby rendered it incompetent and deprived the trial court the Jurisdiction to entertain the Suit. Ground 1, 2, 3, 8 and 9.

Issue 3: Incompetence of the suit

Whether the amended Originating Summons filed on 9th October, 2015 and served on the appellant on 19th February, 2016 after the expiration of the time limited by law for filing and service of the said Originating process is incompetent and thereby deprived the trial Court of its jurisdiction to entertain the suit. Grounds 5, 10, 12, 13 and 17 Issue.

Issue 4: Estoppel and Waiver

Whether from the conduct, express writing and affidavit evidence of the 1st respondent which were placed before the trial court, the court below was wrong to overlook the issue of estoppels and waiver properly canvassed by the appellant against the 1st respondent and consequently enter judgment in favour of the 1st Respondent. Ground 4.

Issue 5: Award of cost

Whether the learned trial Judge was wrong to dismiss the Motion on Notice dated 12th February, 2015 and strike out the subsequent preliminary Objection filed by the appellant in the circumstance of this case and to award cost of N30,000.00 against the appellant on the ground that the Motions were without merit.

Although the 1st respondent similarly distilled 5 (five) issues at pages 8- 9 of his brief as arising for determination in this appeal, he has also raised some preliminary points of concern in the same brief

Issues identified by 1st respondent in his brief for determination in this appeal are:

  1. Whether the Appellant who accepted the result of the Peoples Democratic Party primary election conducted on 8th December, 2014 for aspirants that participated in the gubernatorial primary election with name and score of the 1st Respondent contained therein is right to contend that the 1st Respondent had no locus standi to file Suit No. FHC/UM/CS/91/2015 now FHC/ABJ/CS/71/2016 (Ground 14 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
  2. Whether the filing of Suit No. FHC/UM/CS/64/2015 later numbered as Suit No. FHC/OW/CS/191/2015 by the Appellant in which the 1st respondent is a party in an Originating Summons will stop the 1st Respondent from filing a suit (suit No. FHC/UMCS/64/2015 now suit No. FHC/ABJ/CS/71/2016) as an aspirant to the gubernatorial election and also pursuant to section 31 (5) of the Electoral Act 2010 (as amended) and whether Suit No. FHC/UM/CS/94/2015 now Suit No.FHC/ ABJ/CS/71/2016 constitutes an abuse of the process of the court; (grounds 1 2, 3, 8 and 9 based on speculation o that it is (the Notice of Appeal dated 14th July 2016 and filed on 15th July, 2016).
  3. Whether the amended Originating Summons ordered on 7th October 2015 by the trial Court then sitting in Umuahia to be filed on 9th October, 2015 and which was filed on 9th October 2015 for which the Appellant filed a memorandum of Appearance on 5th November, 2015 was incompetent and deprived the court of jurisdiction to entertain the suit of the 1st Respondent (Ground 5, 10, 1, 12, 13 and 17 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
  4. Whether the issue of estoppel and waiver raised by the Appellant against whom there was no claim by the 1st Respondent and who accepted the PDP primary election result conducted for aspirants who participated on 8th December, 2014 including the 1st Respondent was rightly rejected by the trial Court (Ground 4 of the Notice of Appeal speculated as dated 14th July on 15th July 2016).
  5. Whether the award of cost upon the dismissal of the motion on Notice of the Appellant dated 12th February 2016 and for striking out the Preliminary Objection was wrong. (Ground 6 of the Notice of Appeal speculated as dated 14th July, 2016 and filed on 15th July, 2016).

The brief of argument filed on behalf of the 2nd respondent on 1st August, 2016 has only one (i) issue distilled for determination thus:-

“Whether the Appellant is entitled to a declaration that he was the 2nd Respondent’s candidate and the duly elected Governor of Abia State in the April, 2015 general election who should be issued with a Certificate of Return and sworn in as Governor.

The third respondent in the brief filed on his behalf on the 1st August, 2016 raised just 2 (two) issues for determination at pages 8-9, thus:-

(a) Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetent of the Originating Summons, estoppel, and waiver raised by the Appellant, whether the Lower Court had jurisdiction to entertain the case before it. Ground 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14 and 17 of the Notice of Appeal.

(b) Whether having regards to the case of the appellant before the Lower Court, this Honourable Court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of Appeal – Ground 15 of the Notice of Appeal. Like the 1st respondent, the 3rd respondent also raised some Preliminary Issues or Objection, but this time by way of a Motion on Notice dated and filed on 1st August, 2016

I will address the various objections in the course of this Judgment.

In the meantime the 4th Respondent who has not filed any brief of argument is by that stance deemed as not interested in the appeal or that he is deemed to have agreed to be bound by the outcome of the appeal. See: Sofolakan V. Chief Folakan & 12 Ors. (1999) 10 NWLR (Pt.621) 86, 95; Echere Vs. Ezirike (2006) 12 NWlR (Pt. 994) 386 Qr (2006) 5 SC (Pt. 1) 65.

The Appellant has filed a reply brief in response to the brief of argument for the 1st respondent served on him. The reply brief dated and filed on the 8th August, 2016.

The Appeal came up for hearing on the 9th August, 2016 and Parties were represented by their respective counsel. Messrs Alex A. Izinyon, SAN and Olabode Olanikpekun for the 1st and 3rd respondents respectively took turns to move the court and argue their Preliminary Objection and/or Motion on Notice, as the case may be.

Learned counsel for the 1st respondent, with reference to the Notice of Preliminary Objection already incorporated into his brief of argument at paragraph 3.0 brought into focus, the propriety of the three Notices of Appeal in one Appeal filed by the appellant and thus submitted that the Appeal case was incompetent in that the same was/is:

(1) Founded on three Notices of Appeal.

(2) That Ground 6 of the appeal and Issue No. 5 is as to award of Cost in the Appellant’s Brief of argument.

(3) The appeal is an abuse of right of appeal as there is no relief claimed against the Appellant by the 1st respondent in the substantive Suit, the subject of this appeal nor is there any award made against the appellant on the reliefs claimed against the 2nd, 3rd and 4th respondent by the 1st respondent. Arguments over these Heads of Objection are captured at paragraphs 4.0 to 4.12 of the 1st Respondent’s brief of argument.

Learned counsel for the 3rd respondent similarly raised issues which are preliminary in nature. By the Motion on Notice dated and filed on the 1st August, 2016 he prayed for an order:

” … striking out ground 15 and reliefs Vii, viii, x and xi of the Appellant’s Notice of Appeal dated 14th July, 2016 … ”

The said Motion on notice is predicated on the 6 (Six) Grounds listed in the Motion paper. There is also the supporting affidavit of 6 paragraphs and same was deposed to by Vanessa Onyemauwa, a legal Practitioner in the law Firm of Wole Olanikpekan & Coy.

Argument canvassed in support of these Preliminary Issues raised in the Motion paper are at paragraphs 3.0 to 3.9, pages 3 – 8 of the 3rd respondent’s brief of argument. It is worthy of mention that the appellant even though served with the Motion paper did not deem it fit to file a counter-affidavit or a written address in opposition to issues raised in the supporting affidavit. I believe there is the need to do so otherwise the admonition in Ajomale V. Yaduet (No. 2) [1991] 5 SCNJ 174, 184 is brought to play and the appellant will be deemed as having accepted those facts deposed to in the supporting affidavit as true. See further decisions in: Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Eze V. State (1985) 3 NWLR (Pt. 13) 429; Attorney-General of Plateau State V. Attorney General of Nasarawa State (2005) 4 SCNJ 120. 125. But such admission is with respect to facts only and not law.

See also  Alhaji Nura Ahmadi Kurfi V. Hajia Binta Aminu (2016) LLJR-CA

I will now address those submissions made by counsel over the Preliminary points; thus:-

  1. ON THE APPELLANT’S BRIEF OF ARGUMENT BEING INCOMPETENT

The submission made here is that the appellant having filed 3 (three) separate Notices of Appeal as indicated earlier in respect of the same decision or Judgment of the court below delivered on the 27th July, 2016 , the appellant in his brief of argument ought to have disclosed which among the 3 (three) Notices of Appeal he was relying on. This failure said the learned silk for the 1st Respondent rendered his brief of argument dated 25th July, 2016 and filed on the 26th July, 2016 incompetent as an abuse of court process the appellant having based his appeal and his brief of argument on multiple Notices of Appeal.

Learned counsel for the 1st respondent further submit that issues 1, 2, 3, 4 and 5 raised by the appellant in his brief of argument were not tied to any particular Notice of Appeal hence a brief of Argument cannot be used to address issues in 3 Notices of Appeal.

The Appellant filed a reply brief on the 8th August, 2016 in response to the brief of argument of the 1st Respondent served on him. In it he argued per contra relative to the t question on hand that Appellant’s brief of argument was competent, the appellant or his counsel having adopted and relied on the Notice of Appeal filed on 15th July, 2016 on the day this appeal came up for hearing that is on the 9th July, 2016. He argued that per chance there was any mistake or oversight or inadvertence of counsel to state in the appellant’s brief of argument that he relied on any particular Notice of appeal, the inadvertence has been overtaken when on the 26th July, 2016 he applied to withdraw the 2 (two) other Notices of Appeal and rely and adopt the Notice of Appeal filed on 15th July, 2016. Appellant’s brief of argument said to be abusive of Court process was filed on the 26th June, 2016, that is the same date his counsel applied to withdraw the 2 (two) other Notice of Appeal earlier filed by him and to rely and adopt the Notice of Appeal filed on the 15th July, 2016. This application for withdrawal was not opposed by counsel on the other side, in particular the counsel for the 1st Respondent. To the contrary, Dr. Izinyon, SAN applied for a date to file his brief of argument for the 1st respondent and this court accordingly granted his request and for him to file his brief of argument on or before 2nd August, 2016.

I think, the point should be made here and that is that on the 26th July, 2016 when the brief of argument for the appellant was filed, and the application made on his behalf to withdraw 2 (two) earlier Notices of Appeal, the 1st respondent in particular had not taken any step to file his brief of argument as to suggest that by the brief served on him by the appellant, the 1st respondent was misled to believe that the appellant relied on all the three Notices of Appeal filed by him.

The law is now trite that the person seeking to appeal against the decision given and which is not favourable to him can appeal that decision. In doing so he is at liberty to file as many Notices of Appeal as he so wish but at the date of hearing he can only rely on one of such Notices. See Tukur V. UBA (2013) 4 NWLR (Pt. 1343) 90; Tukur Vs. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39; Asheik V. Bornu State Government (2012) 9 NWLR (Pt. 1304) 1, 17. The apex court in Tukur V. UBA Plc. (supra) has held:

“There is also no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the rules of court. But whenever there are more than one Notices of Appeal and the said Notices were filed within the time so prescribed, the Appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon… ”

This choise came when on the 26th July, 2016, counsel for the appellant indicated his desire to rely only on the Notice of Appeal he filed on the 15th July, 2016 and not on the other Notices filed before them. Since the appeal did not come up for hearing until on the 9th August, 2016, the appellant or his counsel had done all that he needed to do relative to the three Notices of appeal filed by him before the date of hearing. Consequently I will overrule the 1st Respondent or his counsel on this Head of objection and I hold that the brief of argument filed on behalf of the appellant on the 26th July, 2016 (subject to any other issue that may arise in the course of this Judgment) is valid and competent. I so hold.

ii. OBJECTION TO GROUND 6 OF THE NOTICE OF APPEAL AND ISSUE NO. 5 THERETO ON AWARD OF COST.

It has been argued for the 1st Respondent that ground 6 in all the three Notices of Appeal filed by the appellant and Issue No. 5 derived therefrom which dwell on the issue of cost was incompetent so far as leave of court was not first sought and obtained to raise such ground on appeal. Learned counsel relied on the decision in Ukiri Vs. UBA Plc. (2016) 3 NWLR (Pt. 1500) 440, 457; Nwedike V. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ohuwole V. LSPDC (1983) 5 SC 1; A & S.B.C.O. (Nig.) Ltd Vs. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501, 521 and Sections 241 (2) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) to submit that the said ground 6 and Issue No. 5 were incompetent and he urged us to strike out same. But counsel for the appellant in his Reply brief at page 6 to 7 has argued that it is only in situations where the ground of appeal in the Notice is on the issue of cost only that prior leave of court can be sought and obtained. He argued that in this appeal case with 17 (seventeen) other Grounds of appeal, leave of court was not required merely because a ground of appeal on issue of cost is involved.

OPINION

I have read the authorities cited by counsel in their briefs of argument on this point. By Section 241 (2) (c) of 1999€¢Constitution of the Federal Republic of Nigeria, appeal does not lie as of right against award 9f Cost by a Court. See Ukiri Vs. UBA Plc. (supra). Sub-Section 2 of Section 241 at paragraph (c) read:

“(2) Nothing in this Section shall confer right of appeal:

(a) ………………………………………………………………………..

(b) ……………………………………………………………………….

(c) Without the leave of the Federal High Court or the High Court or of the Court of Appeal, from a decision of the Federal High Court made with the consent of the parties or as to cost only”

The argument or the stance of the learned counsel for the appellant is that leave can only be sought and obtained where the issue of cost is the only ground presented in the Notice of appeal as the ground of appeal. This argument, with due respect to him is not sound and defies all legal reasoning. Once the issue of cost is presented as a Ground of Appeal whether as the lone or solitary ground in the Notice of Appeal or as a Ground of Appeal amongst a community of other grounds in the Notice of Appeal, the said Appeal or Notice of Appeal stands invalidated if as a lone ground, the Notice of Appeal is also invalidated in absence of any leave of appeal first being sought and obtained; and where the issue of cost is presented as a Ground of Appeal among a community of other grounds in the Notice of Appeal, the said ground only is invalidated on account of leave not having been sought and obtained to legitimize the ground of appeal on the issue of cost. So the issue of cost whether as a sole or lone Ground of Appeal in the Notice or as a ground amongst other grounds, it is imperative that the Appellant should first seek and obtain leave as a condition to the exercise of the Right of Appeal even in a final decision to which the appeal relate. In this case leave not having been sought to appeal on issue of cost it stands to reason that ground 6 of the Grounds of Appeal along with the particulars are incompetent and ought to be struck out. See: Adewunmi V. Oketade (2010) 8 NWLR (Pt. 1195) 63; Unitam Industries Ltd V. Oceanic Bank International (Nig.) (2008) 3 NWLR (Pt. 911) 83, 102. Sequentially all arguments canvassed thereto by counsel at or from page 24 of appellant brief relative to issue No. 5 derived from Ground 6 are equally incompetent and they suffer the same fate. No one can place something on nothing and expect it to stand. See: Macfoy V. U.A.C (1961) 3 All ER 1169 or (1962) A.C. 159. It will collapse, so is it with ground 6 and Issue No. 5 derived from it and arguments canvassed thereto, they are accordingly hereby struck out.

(iii) The third head of Objection raised in the 1st respondents brief is the complaint that the entire appeal is an abuse of the right of appeal, there being no relief claimed against the appellant herein by the 1st respondent nor any relief granted against him, in the suit filed by the 1st respondent. Arguing contrariwise learned counsel for the appellant submits that a right of appeal reside with the person against whom a decision is made or the decision is against his interest. He argued that the Appellant being an aspirant in the gubernatorial election where he sought to be nominated as the candidate of the 2nd Respondent (PDP) in the said primary election which is the subject matter in Suit No. FHC/ ABJ/CS/71/2015, the decision of which did not favour him, he is entitled to appeal against that decision.

The appellant herein was a party at the trial court in Suit No. FHC/ABJ/CS/71/2015 between Dr. Sampson Uchechukwu Ogah Vs. Peoples democratic Party (PDP) & 3 Ors. He contested that Suit as the 4th defendant even though joined to the suit upon his own application. It does not matter. He is still a party. Having therefore contested the suit as a party at the trial court, the right of appeal thus reside in him if at the end, the decision of the trial court was unfavorable to him and he needed to appeal against it, such person or persons cannot be shut out on account of the claim by the other person (s) stating that no relief was sought against him (appellant) at the trial court and no order affecting him was made by that court. To shut him out on this account is to deny him his right of appeal and right of hearing under Section 243 (a) read together with Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

So as party to the Suit No. FHC/ABJ/CS/71/2015 at the court below, he is well qualified to appeal against that decision and be heard on issues arising from the decision in the exercise of his right to fair hearing. Even where he is not a party to the Suit, the person who can show that he has a legal interest in the subject-matter of the decision in the Suit now on appeal can with the leave of court duly sought and obtained appeal against such decision. See: Ademola Vs. Sodipo (1992) 7 SCNJ 417, 428. In the instant case, the appellant is not just a person interested in the subject-matter to which the appeal relates, he has been a party to the proceedings at the trial court and in exercise of his right of appeal can so appeal. See: Ezechukwu Vs. Madukwe (2011) LPLR-3772 (CA); CAN Vs. Labour Party (2012) LPELR-8003 (CA); Prof. Awojobi V. Dr. Ogbemudia (1983); Re Ugadu (1988) 5 NWLR 188, 203; Ikonne V. COP (1986) 4 NWLR 473. It is one thing for the litigant to exercise his right of appeal, while the validity of the complaint presented by him at the hearing of the appeal is another thing altogether. But to shut the litigant from presenting an appeal in a suit for which he is a party will at this stage translate to jumping the gun. It is like hitting the opponent below the belt and this is contrary to the rules of the game. In effect I overrule this head of the Preliminary Objection and dismiss same.

(iv) The next issue raised in this appeal as a Preliminary point is by way of the Motion on Notice filed on behalf of the 3rd Respondent, Dr. Okezie Victor Ikpeazu on the 1st August, 2016. I have before now in this discourse alluded to this application, the arguments of which are also canvassed in the 3rd respondent’s brief at page 3-8. The crux of the complaint or objection taken is discernible from the grounds upon which the application is predicated, and that are:

(i) That the Originating Summons before the Lower Court did not contain any question for determination relative to the status of the appellant as the candidate for the 2nd respondent.

(ii) There was no relief before the Lower Court seeking the declaration of the appellant as governor of Abia State.

(iii) The appellant did not file any counter-claim before the Lower Court.

(iv) Arising from (a) – (c) above, ground 15 of the Notice of Appeal does not arise from the Judgment of the Lower Court.

(v) There is no relief in the Notice of Appeal for the invocation of Section 15 of the Court of appeal Act.

(vi) Further to (e) above, this Honourable court lacks jurisdiction to grant relief vii, viii, x and xi in the Notice of Appeal.

Learned counsel for the 3rd respondent in his brief has argued that the reliefs contained in the appellant’s Notice of Appeal are reliefs Nos. vii, viii, x and xi are all connected to ground 15 of the Notice of Appeal.

Speaking of ground 15 learned counsel has argued that there was no issue distilled by him from ground 15 of the Notice of Appeal nor arguments canvassed in support thereto. Hence same was abandoned citing in his brief of argument the decision in Durago V. State (1992) 7 NWLR (Pr. 255) 525, 537; Chime V. Chime (1995) 6 NWLR (Pt.404) 734, 747; Sunday V. INEC (2008) All FWLR (Pt. 431) 985,997. It is further argued, in the light of the submission made as above that reliefs vii, viii, x and xi which he said are directly tied to ground 15 become merely academic in nature and ought to be struck out.

Learned counsel for the 3rd respondent further contend that ground 15 of the Notice of Appeal did not arise from the Judgment of the trial court and that same should be struck out citing in his brief of argument the decision in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156, 184. He argued by reference to the Originating Summons (as amended) and the appellant’s counter-affidavit in opposition to the Originating Summons and the brief of argument of the appellant, that there is in reference made in those processes as to the status and the entitlement of the Appellant to the Governorship seat of Abia State and this being the position, the appellant cannot now lay complain that the trial court was in error for failing to return him as the Governor of Abia State when no such relief was sought before the trial court. It is further argued that by the posture taken by the appellant, in seeking to reap where he did not sow, he was not being consistent in the manner he presented his case both at the trial court and in this court. He cited Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248, 269 to submit that whereas at the trial court, his case strictly was that the suit before it was an abuse of the process of court, in this court, he is now seeking for an order to declare him, the Governor of Abia State. He argued that an appeal being a continuation of hearing, the appellant was not entitled to the reliefs sought by him in this court. He cited Ajide V. Kelani (1985) 3 NWLR (Pt.12) 248, 269; Adeleke V. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608, 690. It is further submitted that since the relief now being sought in this court was not sought at the trial court then this court lacks jurisdiction to grant same. He referred us to order 6 Rule 2 (1) of the court of Appeal Rules, 2011 and the decision in Akinbobola V. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270, 285 to urge us to reject/refuse his (appellant) request for an order of his declaration as Governor of Abia State. He urged us to strike out ground 15 and reliefs vii, viii, x and xi.

In relation to the Section 15 of the Court of Appeal Act, 2004 which the appellant has urged this court to invoke, learned counsel for the respondent in his briefs argued that this court cannot do so, so far as the relief was not sought for in the Notice of Appeal. He referred us to Apapa V. INEC (2012) 8 NWLR (pt. 1303) 409, 431. He urged us finally to grant his application and strike out ground 15 and reliefs vii, viii, x and xi in the appellant’s Notice of Appeal dated 14th July, 2016 and filed on 15th July, 2016.

OPINION

Permit me my Lords to observe here that although a reply brief was filed for and on behalf of the appellant on the 8th July, 2016 himself or his counsel did not deem it fit or necessary to respond to those very weighty submissions made by counsel for the 3rd respondent in his brief of argument at pages 3 – 8, paragraph 3. 0 to paragraph 3.9. dated and filed on the l 5t August, 2016. Appellant’s reply brief was filed on the 8th August, 2016. It seems to me that the appellant and/or his counsel care less about those submissions as perhaps, it adds nothing neither does it remove something from his case. This attitude of indifference as exhibited by the appellant or counsel on the issue on hand first became apparent when they neither challenged nor controverted the affidavit evidence to the Motion on Notice filed by the 3rd respondent on this point. A case of admission, you might say.

Be that as it may, I have observed, based on the brief of argument dated 25th July, 2016 and filed on 26th July, 2016 that there is no issue formulated or tied to ground 15 of the Notice of Appeal. No attempt was made in the appellant’s brief of argument to ventilate ground 15 of the grounds of Appeal by any issue. The Ground was just left bare, and standing on its own and this is deemed as having been abandoned. See Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC or (2008) 5-6 SC (Pt.83); Durago V. State (supra); Chime V. Chime (supra); Sunday V. INEC (supra). In Durugo Vs. State, the Supreme Court held:

“In an appeal, a ground of appeal filed on which no issue is formulated, and therefore no argument preferred in the brief of argument, will be deemed by the court as having been abandoned…”

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The same court in another case further held in Pam V. Mohammed that:

“As Issue are formulated from ground of appeal, ground 4 which is not ventilated by any Issue is incompetent.” Per Tobi, JSC

A ground of Appeal is liable to be struck out where no issue is derived from it hence no valid argument can be canvassed.

Mr Olabode Olanikpekon, learned counsel for the 3rd respondent has in his brief of argument urged on the court to strike out reliefs vii, viii, x xi of the Notice of Appeal which he said are connected with or to ground 15 of the Notice of Appeal. I am contented, however, to stop here for now. The question whether or not the appellant is entitled to any of the reliefs claimed and in particular reliefs vii, viii, x and xi sought to be struck out should come up at the close of deliberations in this exercise, upon the Appeal being heard on the merit.

Issue similar to those canvassed by the 3rd respondent in his brief of argument relative to reliefs vii, viii, x and xi in the Notice of Appeal are also canvassed by the 3rd respondent in his brief of argument but not by way of an objection raised as a preliminary point but as a substantive matter or issue in the Appeal and his counsel, the learned silk, Dr. Onyechi Ikpeazu, SAN was heard over it.

I can now see the wisdom behind learned counsel’s preference to argue this point as a substantive issue in this appeal. He has his reasons and has so expressed himself at paragraph 5.01 of his brief of argument at page 7. He would not mind that in view of the complexity of this matter, the appeal is set aside. There is more to this, it seems. His grouse really relates to grounds 15 and 16 of the Notice and grounds of appeal only where the appellant in the said Notice has complained that he ought to have been declared the candidate of the 2nd respondent who won the Governorship election and who should be issued with a certificate of Return and be sworn in as the Governor of Abia State.

Respondents have in their own ways expressed their different views in the respective briefs of argument filed by them in response to this appeal and indeed on the reliefs now being sought as per the Notice of appeal. I can now direct my attention to the appeal proper.

The Appellant raised 5 issues for determination in his brief of argument and adopted same along with argument canvassed thereto at the hearing on the 9th August, 2016 to urge on the court to accede to his request and allow the appeal. The 1st, 2nd and 3rd Respondents similarly formulated issues in their respective briefs of argument which I have reproduced earlier in the Judgment.

However, after a thorough consideration of those issues vis-a-vis arguments canvassed by learned counsel, in their briefs, I form the opinion that the question of locus standi of the 1st respondent to present and institute the suit leading to this appeal, the question of the suit so instituted by him being an abuse of the process of court, incompetence of the Originating Summons, estoppel and waiver raised by the appellant, are issues or questions having direct relevance on the jurisdiction of the trial court to entertain the suit. In the light of this I form the opinion therefore that this appeal can be addressed and determined based on two (2) broad issues as done by the 3rd respondent or his counsel in his brief of argument at pages 8 – 9, paragraph 4.0 to 4.1 and accordingly I adopt same, namely:

  1. Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.
  2. Whether having regards to the case of the appellant before the Lower Court, this Honourable court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of appeal- ground 15 of the Notice of Appeal.

Argument on Issue No. 1

Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.

The appellant has canvassed issue No. 1 at page 5 to 24 of his brief of argument. Learned appellant counsel has argued relative to the question of the locus standi that the 1st respondent lacks it and could therefore not institute the suit as he did at the trial court in terms of Suit No. FHC/ABJ/71/2016 giving rise to this appeal having condemned, repudiated and rejected in writing the PDP Gubernatorial primary election held in Abia State on 8th December, 2014. That the 1st respondent having also refused to acknowledge and sign the result of the primary election he cannot be said he, participated in the PDP primary election. He relied on the unreported case of this Court in Orufa V. Josline Boluobo V. PDP & 2 Ors; Appeal No. CA/A/546/2012 of the 3rd September, 20113 and the decision in PDP V. Sylva (2012) 13 NWLR (Pt.1336) 85 to submit that the 1st respondent lacks locus standi. It is further argued by counsel for the appellant that by the way and manner the 1st respondent conducted himself at the PDP primaries, by the rejection of same, his refusal to sign the election result, his utter condemnation of the exercise, he (1st respondent cannot thereafter come to court to claim any right which he had waived by his conduct, writing and Oath. In reference to Section 169 of Evidence Act and decision in Obitude V. Oyesom Community bank Ltd (2014) 9 NWLR (Pt. 1412) 352, 382; Ehidimhen V. Musa (2000) 8 NWLR (Pt. 280)126, 155; Attorney-General Nasarawa Vs. Attorney-General Plateau (2012) 10 NWLR (Pt.278) 638 ; Anor Vs. Elemo (1983) 14 NSCC 1. He submits that where one person has by his declaration, act or omission intentionally caused another person to be true and to act neither he nor his representative in interest can deny the truth of that thing. He relied on: Bakare V. Lagos State CSC (1992) 10 SCNJ173. Having thus waived his right he has lost same once the other side acts on the waiver, the party waiving his right is estopped to return to that which he had waived. It was urged on the court to hold that the 1st respondent had waived his right.

Learned appellant’s counsel has further urged us to hold that the suit filed by the 1st respondent as Suit No. FHC/ ABJ/CS/71/2016 was an abuse of court process in that as at the time the suit was filed there was already in existence another suit on the same subject-matter and for which the 1st respondent was/is a party as defendant who filed his defence to suit that is No. FHC/ ABJ/CS/184/2015 and later, FHC/ ABJ/CS/64/2015 now FHC/OW/CS/191/2015 between Nwosu Vs. PDP & 3 Ors. He urged us to hold therefore that the Suit instituted by the 1st respondent, now Suit No. FHC/ ABJ/71/2016 is an abuse of court process. He cited and relied on Ntuk & Ors Vs. NPA (2009) 13 NWLR (Pt. 1051) 392, 419; Lokpobiri V. Ogola (2015 11 SCNJ 71; Amefale V. State (1988) 2 NWLR (Pt. 75 156, Edet V. State (1988) 4 NWLR (Pt. 191) 7222; African Reinsurance Corporation Vs. IDP Construction Nigeria Ltd (2003) 5 SCMJ 104, 121 among other.

Learned counsel further submits that when the facts enumerated on the counter-affidavit of the Appellant at the trial court are juxtaposed with the court’s process, exhibits marked and attached as exhibit A, B- B1 as D-02 and E- E1 as at pages 860-1020 of the record of appeal, Vol. 2, it becomes apparent, that the instant case of the 1st respondent before the trial court and now this court is an abuse of process. He urged us to disallow this abusive nature of the suit leading to this appeal in the light of the 1st respondent herein being the defendant in the earlier suit filed by the appellant between the same parties on the same subject- matter, on the same issue and for the same relief. He cited ACB v. Nwaigwe & Ors. (2011) 1-2 SC (Pt. 11) 67.

On the question of the suit at the trial court being incompetent, learned appellant’s counsel submits among others with respect to the failure of the 1st respondent to timeously effect consequential amendments to his originating Summons, and serve same on the appellant rendered the amended process incompetent more so that the same was neither signed nor stamped and sealed by the 1st respondent. That the originating Summons served on the appellant was filed out of time and served out of time to oust the jurisdiction of the trial court erroneously held otherwise. He urged us to hold that the originating process was incompetent and he referred to the decision in Madukolu V. Nkemdilin (1962) 2 All NLW 588, 992; lhedioha V. Okorocha (2016) 1 NWLR (Pt.1492) 1471, 156- 157.

The response of the 1st respondent are at pages 8-25 of his brief of argument. The 1st respondent has debunked those submissions of the appellant at pages 8- 25 of his brief of argument. First as regards locus standi of the 1st respondent, learned counsel referred us to paragraph 1 and 30 of the affidavit in support of the originating process not only to show that the 1st respondent is a member of Peoples Democratic Party (PDP) who as an aspirant participated in the primaries held on 8th December, 2014 but obtained 103 votes in that election. In further reference to Issue formulated for determination and the reliefs sought the 1st respondent by the Originating Summons filed by him, he argued that all these facts conferred on the 1st respondent the locus standi to institute the suit as he did at the trial court.

Learned counsel for the 1st respondent therefore submits with regard to Section (4) B (i) and (ii) and Section 87 (9) of the Electoral Act that the 1st respondent has locus standi, a fact which he said the appellant cannot deny. In furtherance of this submission counsel referred us to Section 31 (5) of the electoral Act. This provision he said, allowed any person to go to court in the circumstances provided therein. He argued that either by Section 87 Or 31 (5) of the Electoral Act, the 1st respondent has the locus standi to institute the suit as he did at the court. In support of his contention he relied on Albion Construction Ltd V. Rao Investment & Property Ltd (1992) 1 NWLR (Pt. 219) 583, 598; Adefulu Vs. Oyesila (1989) 5 NWLR (Pt. 122) 377; Thomas V. Olufosoye (1986) 3 NWLR (Pt. 18) 669; uwazuruike Nwachukwu (2013) 3 NWLR (Pt. 1342) 503, 530; Ukachukwu vs. PDP (2014) 17 NWLR (Pt. 1435) 134, 201; Ekegbara V. Ikpeazu (2016) 4 NWLR (Pt.1503) 411, 439. Learned counsel for the 1st respondent in his brief sought to distinguish the case of Orufa Josline Boluoso V. PDP & 2 Ors. (Unreported) Appeal No.CA/A/146/2012 of 3rd September, 2013 and the case of PDP V. Sulva (2012) 13 NWLR (Pt. 1316) 85 for the current case on appeal where as in the former it is argued that the 1st respondent did not participate in the primaries in relation to the question of abuse of process of court as alleged by the Appellant, the 1st respondent has submitted that the filing of suit FHC/ ABJ/71/2016 by him as an aspirant cannot constitute abuse of process while in pursuance of the right given to him pursuant to Section 87 (9) and 31 (5) of the Electoral Act (as amended). He cited Akhigbe V. Panlosa Nig. Ltd (2006) 12 NWLR (Pt.994) 373; Oregbede V. Onitiju (1962) 1 All NLR 32; Obala of Oten-Anyebayi v. Adesina (1992) 2 SCNJ 118. It is further argued that section 6 (6) (a) [b] of the 1999 Constitution enabled the 1st respondent to go to court and nothing can stop that, not even the appellant. He cannot stop anybody who has reasonable information that the document submitted by any candidate to an election was false from going to court to so state. Pursuant to Section 131 (5) of Evidence Act

Learned counsel further debunked the suggestion that the suit filed by the 1st respondent had the same parties, subject-matter and issues as the suit previously filed by the Appellant. If anything it is contended that the suit filed by the appellant has as the subject-matter, forgery of a Certificate pursuant to Section 182 (1) of 1999 Constitution whereas the suit filed by the 1st respondent was anchored on Section 87 (4) (B) (i) and (ii) of the Evidence Act and Section 31 (S) of the same Electoral Act. He argued that the Appellant has not made out a case of abuse of court process as alleged.

On the complaint that the Amended Originating Summons was neither signed nor filed timeously as ordered by the trial court, learned counsel for the 1st respondent arguing per contra by reference to the Order made at the trial court on 7th October, 2015 by which order the 1st Respondent was directed to file his amended Originating Summons on or before 9th October, 2015. Learned counsel contends that the order of the trial court was complied with when on the 9th October, 2015 he filed his amended Originating Summons and caused same to be served on the Appellant. Consequent upon the process being served, the appellant entered a memorandum of appearance on the 5th November, 2015. To this end it is argued that the claim by the Appellant that he was not served with the Originating Summons until in April, 2016 was utter falsehood.

On the question of lack of signature on the Amended originating Summons served on the Appellant, was cured by the service on the appellant of a signed copy of the Originating Summons notwithstanding the other service which concede the appellant to file a memorandum of appearance on 5th November, 2015.

On the contention of absence of seal of counsel who prepared the originating Summons, he argued that this defect was cured by the Motion made to affix stamp and seal of counsel and this was not opposed by the appellant.

On the Issue of estoppel and waiver, counsel for the 1st respondent has argued that the appellant cannot rely on his letter of his protest over the conduct of PDP primary elections to contend that the 1st respondent has waived his right and cannot therefore claim any right arising from those primaries. He argued that by the said letter of protest, the 1st respondent was only exploring the internal dispute resolution mechanision which he said was a condition precedent to a suit being instituted. Relying therefore on Aribisale vs. Ogunyemi (2005) 6 NWIR (pt. 921) 212, 21-232; Omahiko V. Awachie (2002) 12 NWLR (Pt. 780) 1; Ogologo V. Uche (2005) 14 NLR (Pt.945) 226, 245 he argued that an aspirant who participated in the primaries and whose score in the said primary election was released cannot be said has waived his right relative to that election and thus is estopped from litigating any action pursuant to section 87 (9) and 31 (5) of the Electoral Act as amended. He argued that it is his complaint against the conducts of the elections that gave rise to his cause of action not the acceptance of the result of primaries. He argued that in law estoppel, waiver and conduct are used as a shield to defend an action against a party hence the Appellant against whom no relief was sought cannot rely on the defence of estoppel and waiver to stop the 1st respondent from claiming any relief against the appellant. Learned counsel therefore urged on the court to dismiss the appeal.

The 2nd respondent in his brief of argument took sides with the appellant on those points wherein his counsel in agreeing with the appellant argued that:

(i) The trial judge was wrong to hold that the 1st respondent had the requisite locus standi to institute the action.

(ii) The trial Judge was wrong to hold that the amended originating Summons is competent the same not having been filed within the requisite or penalty paid default; and

(iii) The trial Judge was wrong to dismiss Appellant’s Motion dated 12th February, 2016.

The third respondent in his brief like the 2nd respondent similarly agree with the appellant and that the decision of the trial court in unsupportable regarding the issue of locus standi, abuse of court process, incompetence of the suit before that trial court and the conduct of the 1st respondent relative to the PDP Primary elections, constitute a waiver hence the 1st respondent was estopped from any claim fright over those primary elections.

The Appellant filed a reply brief on the 8th August, 20116 in response to the 1st respondents brief of argument. I have noted the points raised by him in his reply brief I will now proceed to state my view on the submission made by counsel.

OPINION

I will first address the Issue of locus standi of the 1st respondent to institute the suit as he did and in doing that it must be appreciated that the term locus standi simply denotes the legal capacity that the plaintiff has to institute proceedings in a court of law. It is used interchangeably with terms like “standi” or “title to sue”, thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or in the alternative if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on facts of each case. See: Adesanya V. President, Federal Republic of Nigeria (1981) SC 69; Akinfolarin V. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 61/ Omadunni Vs Regd. Trustees (2000) 6 SCNJ, 417. It follows therefore that when the locus standi of the Plaintiff is challenged it is the originating process that the court need to look at to discover the standing of the plaintiff, the 1st respondent in this appeal case, who instated action as plaintiff at the court below by way of the Amended Originating Summons filed by him and as reflected at pages 725 – 741 of vol. 2 of the printed record of Appeal;. The Originating process is thus, the Cynosure of the exercise. See: Dissu Vs. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government Vs. Sestisione H. Nigeria Ltd (2012) LPEL-893C. (CA). In the affidavit deposed to by the 1st respondent himself in support of the amended Originating Summons indicate very clearly at paragraphs 1 and 2 that he is a member of the Peoples Democratic Party who participated as an aspirant in the Peoples Democratic Party Gubernatorial Primary Election for the elective office of Governor of Abia State. That the gubernatorial primaries were held on the 8th December, 201. Again by the reliefs sought by him, at pages 729 – 731 particularly reliefs No. 1, 4, 5, 6, 7, 8, 9, 12, 13 the 1st respondent as plaintiff, did not only place himself in the epic centre of the exercise but said he was an aspirant who participated in the primary elections of PDP held on the 8th December, 2015 wherein by the results of the primary elections declared, the following score were recorded against the names of each contestant or aspirant who participated in that exercise. That is to say:-

NAME OF ASPIRANTS VOTES SCORED

  1. IHEANACHO OKEZIE 1
  2. MARKWABARA 3
  3. CHIEF (Dr.) OKEZIE IPKEAZU 487
  4. OKEY EMUCHEY 3
  5. ACHO NWAKANMA 5
  6. DR. UCHE OGAH 103
  7. EMEKANWOGU 33
  8. BARRISTE FRIDAY NWOSU 3

See paragraph 30 of the affidavit in support of the amended originating Summons at page 737 of the record.

So what greater evidence is there to show that the 1st respondent has locus standi especially considering that those facts were not controverted at the trial court nor denied in this court at the hearing of the appeal? The contention by the Appellant that 1st respondent had rejected the Primary and repudiated his interest in that exercise are to my mind, a different kettle of fish. Such alleged rejection or repudiation does not distract from the fact that the 1st respondent participated in the exercise leading to the nomination of a candidate for the gubernatorial elections. This brings to mind the provision at Section 87 (9) and 31 (5) of the Electoral Act. Section 87 (9) provides thus:-

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€œNotwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the high Court of a State for redress.”

This provision came up for interpretation or consideration in Emenike V. PDP (2012) All FWLR (Pt. 1640) 1261; PDP Vs. Sylva (20120 13 NWLR (Pt. 1316) 85. The apex Court in Ardo V. Nyako (2014) All FWLR (Pt. 744) 130, 160 held:

€œUnder the said Section 87 (9), an aspirant who can invoke the jurisdiction of the Court and as has been held in a long line of cases from this court, is the one who complain that any of the provision of the Electoral Act and the guideline of a political party has not been complied with in the selection or nomination party for election”

See further the decisions in Uwazuirike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206, 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.

Issues formulated for determination at the trial court set out at pages 726- 728 of the printed record. It is my view that the 1st respondent is not only a member of the Peoples Oemocratic Party, he was an aspirant in the 8th December, 2014, Gubernatorial primaries of the PDP, having participated in those primaries and thus has the locus standi to maintain the action as he did. See PDP Vs. Sylva (supra). I am satisfied that the 1st respondent has, from the facts and evidence on the printed record before us, has brought himself within the meaning of Section 87 (9) of the Electoral Act to fortify him with the locus standi that he needed to approach the trial court as he did pursuant to Section 31 (5) of the Electoral Act.

On the issue of abuse of process of court by the 1st respondent by dint of the suit filed by him and as Suit No. FHC/ABJ/CS/71/2014 leading to this appeal, again I find no substance in this complaint.

What constitute an abuse of court process has been a subject of imprecise definition. In Saraki Vs. Kotoye (1992) 11/12 SCNJ -26 the concept of abuse of judicial process was held to involve:

“Circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of judicial process by a party in litigation to interfere with due administration of justice.”

The court in Saraki’s case (supra) was however quick to add that it amount to setting a higher standard to insist that the exercise of a constitutional right of appeal was an abuse of court process if the exercise of that right was likely to delay the hearing of the substantive action to conclusion. I felt I can draw this analogy from the decision referred to above. Would a person who is aggrieved with the outcome of a Process be denied access to court where he can ventilate his grievances on account of the existence of the suit filed by the other person arising from the same process. Concept of abuse of judicial process should, I think be applied with some measure of caution so as not to curtail the exercise of right of access to court by the individual, especially where the law or statute so provide. As for instance section 31 (5) of the Electoral Act enjoins:

“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High court against such person seeking a declaration that the information contained in the affidavit is false.

I want to believe and I so hold that the suit or action commenced by the 1st respondent was predicated on this provision among others. In any case the courts under the constitution of the Federal Republic of Nigeria, 1999 as amended, are vested with judicial powers under Section 6 of the said Constitution and the exercise of those powers:

“extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the Civil right and obligations of that person.

See: section 6 (6) [b]of the Federal republic of Nigeria, as amended. Thus the courts ab initio in the exercise of their judicial powers can entertain action brought by persons in the likes of the 1st respondent.

Although the appellant and the 1st respondent found themselves in the same PDP boat and as Co-contestants or aspirants in the PDP Primaries held on the 8th December, 2014, they each retained their individual aspiration in the quest for nomination as the flag bearer of the party for which each one of them is a member. Consequently any one contestant who felt there was a flaw in the process, such flaw gives him right of action. This is my understanding of the Suit brought at the trial court by the 1st respondent and such does not constitute an abuse of judicial process.

The Issue of waiver and estoppel was canvassed most vigorously by the appellant in his brief of argument wherein it is contended by him that the 1st respondent having rejected the primaries and repudiated his interest therein, even in writing, he has waived everything that he has with that exercise and is estopped from any claim of right over that (primary) election. The concept of waiver and estoppel to my mind is much more than what the appellant thought it is, on the facts presented by him.

Before I go any further, you will permit me my lords to say that the concept of WAIVER is akin to acquiescence, like election; it presupposes that person to be bound is fully cognizant of his right but neglects to enforce them, or chooses one benefit instead of another, either, but not both of which he might claim. See Ikechi Olue Vs. Obi Enenwali & Ors. (1976) All NLR 70 Or (1976) 2 SC 12. What a party relying on waiver must prove is €¢that the other party well knew of the existence of the misfeasance and despite this knowledge unequivocally accept it. See: Haightons (W.A.) Ltd Vs. Ajao & ors (1975) 1 SC (reprint) 8. Therefore if the party by conduct leads another to believe that the strict right arising under a contract will not be insisted upon, intending that the other should act on that belief, and he does act or it, then the first party not afterwards be allowed to insist on the strict right when it would be inequitable for him to do so. Se: united Cababer Co. vs. Elder Dempster Lines Ltd. (1972) All NLR 682 Or (1972) 8- 9 SC 31.

One fact which is very much prominent in the application of the principle of WAIVER is the existence of an agreement or contract between two or more parties or person as would lead the other party relying on the conduct of the person waiving his right to shift position. In that case there can be no return to a claim of right by the person who waived it. So, from the facts presented in this case on appeal unless it can be shown there is no such fact or evidence) that there is an understanding or some agreement of same sort between the 1st respondent and the appellant that the former has waived his right relative to the primaries held on the 8th December, 2014 then there is a misapplication of the doctrine. The case of the Attorney-General of Nasarawa State vs. Attorney-General of Plateau State (2012) 3 SCNJ 273 cited by the appellant in his brief has made this point abundantly clear and same does not support his stance. Ditto Obitude V. Onyesom Community Bank Ltd (2014) 9 NWLR (Pt.1412) 352, 382; Ehidimhen V. Musa (2000) 8 NWLR (Pt.280) 126. Those are the circumstances that would constitute waiver and estoppel under Section 169 of the Evidence Act, 2011. The other person or party relying on the conduct of the party making it must believe in the truth and act on the belief of the Statement or the conduct of the person making that representation.

The appellant has claimed that the 1st respondent rejected the primaries and refused to sign the result sheet and rather walked away. There is however evidence that the Appellant accepted the result of the Primaries and signed it. This is even in addition to the fact that there was neither an understanding nor an agreement between the 1st respondent and the Appellant to commit the latter to his actions. There is no such agreement.

Again it was contended that the mere fact of rejection of the primaries by the 1st respondent revealed his disinterestedness on the exercise. How else is it supposed to be if not as done by the 1st respondent to express himself, and to ventilate his grievances the way he did. It is natural to do so in all human setting such as the primaries of the PDP where shades of interest were represented. That is why the legislature in recognition of this human element in us employed the word “complains” under Section 87 (9) of the Electoral Act. Hence without such complaints there can be no realistic cause of action. It is my view therefore that the person who by his actions or conduct has expressed his disapproval of a process stands to be reckoned with first and above the person who merely accepted that process without laying any complaints.

Again I do not find any merit in this submission of the learned counsel for the appellant. Further on this jurisdictional Issue is the point raised as to the process Originating the suit being incompetent relative among others to:

(i) The Originating Summons not being signed and stamped and sealed.

(ii) The Amended Originating Summons not being filed within time in absence of any application legitimizing the process.

With respect to the first that is non-signing of the Originating Summons (as amended), such ordinary will nullify the process and proceedings built or founded on that process because the absence of signature on an Originating process is a fundamental vice and this goes to the root of the action without which an originating process is liable to be struck out since a person’s signature, written names or mark on a document, not under seal, signifies the authentication of that document that such a person holds himself out as bound or responsible for the contents of that a document. See: Adefarasin V. Dayekh (2007) 11 NWLR (Pt. 1044) 89; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461, 480-481; SLB Consortium Ltd Vs. NNPC (2011) 9 NWLR 317. Bode Rhodes- Vivour, JSC in his contributory Judgment held:-

“What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process it is incurable bad it is incurably bad and rules of court that seem to provide a remedy are of no use as a rule cannot override the law (I. E. legal Practitioner’s Act). All processes filed in court are to be signed as follows:-

First, the signature of counsel which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represent.

Fourthly, name and address of Legal Firm”

The second point raised under thus sub-head is that the 1st respondent’s Originating Summons was served on the Appellant belatedly on the 19th day of February, 2016 and that is outside the time decreed by the trial Court. In his brief of argument at page 22 the 1st respondent’s brief of argument it is submitted that the allegation that the appellant was served on the face of the memorandum of appearance filed by the appellant on 5th November, 2015, contradicted the contention of the appellant as to service on the appellant in February, 2016. That the service February, 2015 was effected out of excess of caution as to avoid waste of time and the necessary appeal over service of court processes. That the complaint that the copy served on the appellant was not signed was cured by the service on the appellant of another signed copy of the Amended originating Summons notwithstanding the service on the appellant that caused the appellant to file Memorandum of appearance on 5th November, 2015. That the contention on the absence of seal of counsel that prepared the originating Summons was cured by the Motion to affix the stamp which not opposed by the appellant.

In response to this submission the appellant in his reply brief said the process he filed on 5th November, 2015 was a conditional appearance and not that he was served with the Amended originating Summons.

So, the question arises as to why the Appellant entered appearance on the 5th November, 2015 if he was not served the originating summons viewed from the background that order 7 rule 1 (i) of the Federal High Court (Civil procedure) Rules 2009 require of the defendant on whom an originating process was served to enter appearance within 30 days from the date of service on him. This point was not addressed by the appellant in his reply brief neither did he deny that he entered such appearance. Could he have entered appearance without service on him of the Originating Process? That is the question. I think not.

The second point is as regards signature not having been appended on the Originating Process and also the stamp and seal of the Nigerian Bar Association not having been fixed or affixed on that Process.

Without much ado on this, a look at the amended originating Summons dated 2nd October, 2015 and filed on 19th October, 2015 particularly at page 196 of the printed record of Appeal is sufficient to prove to all doubting thomases that indeed the Originating process was signed by one O.J. Nnadi, Esq, SAN, and also stamped with the stamp of the Nigerian Bar Association stamp bearing the name of counsel referred to above. So it is not correct to say that the amended process was not signed as alleged by the appellant or his counsel. In the same vein it can be discerned ex facie that the originating process was assessed and paid for on the 19th October, 2015 as evidenced by the cashier’s stamp at page 190 of the printed record of appeal.

In the light of all the foregoing in this discourse I resolve issue No. 1 in favour of the 1st respondent and against the appellant.

Issue No.2

Whether having regards to the case of the appellant before Lower Court, this Honourable has the jurisdiction to grant reliefs Vii, Viii, x and xi in the Notice of Appeal.

Issue No 2 as couched and reproduced as above is common to the second and third respondents who raised it and canvassed same in their respective brief of argument. The question of appellant entitlement to the reliefs sought by him in his Notice of Appeal dated 14th July, 2016 and filed on the 15th July, 2016 was neither canvassed by him in his brief on the 26th July, 2016 nor his reply brief dated and filed on the 8th August, 2016.

In the brief of argument filed behalf of the 2nd respondent on the 1st August, 2016 it is argued that the appellant was/is not entitled to the reliefs sought by him in his Notice of Appeal. His reason being that grounds 15 and 16 under which the reliefs as sought were not covered by nor were issues distilled form any of those grounds for determination of court. He relied on Ministry of Education Anambra State Vs. Asikpo (2014) NWLR (pt. 1427) 351, 373 to submit that grounds 15 and 16 are been abandoned and same is struck out along with the reliefs 4 (vii), (Viii), (x) , (ix) as well as argument canvassed thereto in the brief of argument for the appellant at paragraph 6.03.

Learned counsel for the 2nd respondent in reference Vii, viii, x and ix in the Notice of Appeal has argued that prayers Vii and vii are twin pillars on which orders in prayers x and xi are founded but he further argued that those relief claimed by the appellant at the trial court. Secondly, he argued that the relief being declaratory in nature must specifically be claimed by the appellant at the trial court. It is further argued by him that the appellant even though the 4th defendant at the trial court he did not file a counterclaim in this regard to entitle him to any of the reliefs now being claimed in this court as per reliefs Vii, Viii, x and xi. The submission made by counsel for the 4th respondent is along the same direction.

OPINION

In his Notice of Appeal filed on 15th July, 2016 the appellant has sought a number reliefs and for ease of reference I will reproduce the reliefs relevant to the issues on hand namely: vii, viii, x and xi as follows:

“vii. A Declaration that the Appellant was the rightful Gubernatorial Candidate of the 2″d Respondent (PDP) in the 2015 general election by virtue of the 8th December, 2014 2nd Respondent’s (PDP) . Gubernatorial Primary election in Abia State.

viii. A Declaration that the Appellant is the duly elected Governor of Abia State by virtue of the governorship election held in Abia State in April, 2015

x. An order that the Appellant be issued with a Certificate of Return as the duly elected Governor of Abia State by the 4th Respondent.

xi. An order that the Appellant be sworn in as the Governor of Abia by the Chief Judge of Abia State or any other relevant Chief Judge or Judicial officer”

The appellant was the 4th defendant at the trial where he contested the suit filed by the 1st respondent as the plaintiff in suit No.FHC/ABJ/CS/71/2015 but as 4th defendant he fell short of entering a counter-claim in the nature of the reliefs now being sought by him in this court vide his Notice of Appeal. Having thus not filed any counter-claim he had not also led any evidence in that regard at the trial court. Every appeal is a continuation of hearing. Where therefore necessary foundational framework was not laid at the trial court by way of evidence led to put issues in proper perspectives at that court, it will be too late to raise those issues at the appeal Court and even if raised, the appellate court will have no jurisdiction to entertain such issue or claim as in this case, of the reliefs now being sought. See Osuji Vs. Ekeocha (2008) 16 NWLR (Pt. 1166) 81 (SC); Sabru Motors Nig. ltd Vs. Rajah Enterprise (2002) FWLR (Pt.116) 841; UBA Plc. Vs. Mustapha (2004) 1 NWLR (Pt. 855) 443; Lagga V. Salhuan (2009) All FWLR (Pt.455) 1617; Ngige V. Obi (2005) NWLR (Pt.999). Such will amount to raising fresh issues on appeal but an Appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a Lower Court without leave of the court being obtained. In the instance case the appellant had not sought leave of this court to canvass issues by way of the prayers Vii, viii, x and xi in the Notice of the Appeal. Hence those reliefs are struck out afortiori Grounds 15 and 16 the Notice and Grounds of Appeal hence Issue No. 2 is accordingly resolved against the appellant.

On the whole therefore this appeal fails and same is dismissed. I assess cost in the sum of N100,000.00 against the appellant and in favour of the 1st respondent.


Other Citations: (2016)LCN/8982(CA)

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