CORAM
PARTIES
ABUBAKAR SANI DANLADI & ANOR APPELLANTS
USMAN UDI & ORS RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/1st– 4th Respondents took out an Originating Summons against the Defendants/Appellants and the 5th Respondent. The following question was raised for determination, among others: Whether regard being had to the provisions of Section 31(5) of the Electoral Act 2010 (as amended) the information given by the 1st Defendant as to his age in the affidavit in support of his personal particulars in the INEC Form CF001 submitted to the 3rd Defendant by him is false when the 1st Defendant stated in the affidavit supporting his personal particulars that he was born on 14th January 1968, when the 1st Defendant’s date of birth contained in the West African Senior Certificate submitted by him to the 3rd Defendant indicates that the 1st Defendant was born on 3rd April, 1977. The following reliefs were sought, among others: declaration of the court, disqualifying the 1st Defendant from contesting election as the candidate of the 2nd Defendant in the Governorship Election for Taraba State; an order of court, disqualifying the 1st Defendant from contesting for the above position in the March 2019 election. The Appellants, in opposition, raised a preliminary objection to the effect that the trial court had no jurisdiction to hear the Originating Summons on the grounds that it was filed outside the 14 days by virtue of Section 285(9) 4th Alteration Act, No. 21 of 2017 to the 1999 Constitution. The trial court dismissed the said objection and that since none of the 1st – 4th Respondents participated at the Primary Election that produced the 1st Appellant, Section 285(14) of the 4th Alteration to the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution) did not apply to the case. Also, that since none of the 1st – 4th Respondents was a party in Appeal No. CA/J/EP/GOV/55/08, they cannot be bound by the said judgment. The trial court granted all the claims of the 1st – 4th Respondents. It is against this judgment that the Appellants have filed an appeal before this court. The 1st – 4th Respondents filed a Notice of Preliminary Objection seeking the appeal to be struck out on grounds that the Notice of Appeal was not served on the 1st – 4th Respondents before the Appellants unilaterally compiled the Record of Appeal, that they were denied the opportunity to participate in the compilation of the Record of Appeal contrary to the Provision of Order 8 Rules 1 – 3 of the Rules of this Honourable Court.
HELD
Appeal Struck Out
ISSUES
Nil
RATIONES DECIDENDI
NOTICE OF PRELIMINARY OBJECTION – DUTY ON COURTS TO CONSIDER A PRELIMINARY OBJETION FIRST WHEN SAME IS RAISED
“It is well settled law that where a Notice of Preliminary Objection is filed or argued in the Respondent’s brief challenging the jurisdiction of the court or the competence of an appeal (as in this case), the court is duty bound to consider the preliminary objection first and determine same, before considering the appeal on the merit if the need arises. See, All Progressive Congress vs. Ibrahim Umar& Ors (2019) LPEELR – 47296 (SC) P.7, paragraphs A – D. The essence of the challenge by way of preliminary objection is to foreclose the determination of the appeal, it is therefore best to resolve it first to save valuable time. See, Yaro vs. Arewa Construction & Ors (2007) LPELR – 3516 (SC) and Okafor vs. Nwude (1999) 7 S. C (PT 1) 106.”
RECORD OF APPEAL- WHETHER THE RULE UNDER ORDER 8 RULE 2 AND 3 OF THE COURT OF APPEAL RULES, 2016 CAN BE WAIVED
“The learned counsel to the Appellants had argued that the provisions of Order 8 Rules 2 and 3 are not sacrosanct and could be waived. For clarity, Order 8 Rules 2 and 3 provide as follows:
Order 8 Rules 2 and 3
(2) In pursuit of Rule 1 above, the registrar shall within fourteen (14) days summon the parties before him to –
(a) Settle the documents to be included in the Record of Appeal and
(b) Fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.
(3) The said Registrar shall whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settle and determine those matters in accordance with the provisions of Rules 2(a) and (b) of this Order.” (Underlined mine for emphasis).
From the above provisions of the Rules of this court compliance with the above Rules is mandatory, connoted by the use of the word “shall” and cannot be waived as urged by the learned counsel to the Appellants.”
NOTICE OF APPEAL – EFFECT OF NON SERVICE OF A NOTICE OF APPEAL
“In Adegbola vs. Osiyi (2017) (Supra) at Page 18 his lordship, Kekere – Ekun, JSC on the effect of non-service of a Notice of Appeal on the Respondent held thus:
Being an originating process, it is a fundamental requirement not only of the rules of this court but also of the Constitutional right to fair hearing guaranteed under the constitution that all parties to the appeal be duly served therewith. It is only when a party has Notice of Proceedings that he is in a position to react thereto and place his own side of the case before the court. In an appeal service of the Notice of Appeal on the Respondent provides him with an opportunity to participate in the compilation of the records and to file cross – appeal, if necessary. Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the court’s jurisdiction to adjudicate.
His lordship, Eko JSC on his part in the same decision above at pages 18 – 19 held thus:
“The effect of non service on the Respondent of the Notice of Appeal is that it deprives the Respondent the opportunity he has to file a Notice of Cross Appeal within the time stipulated. It also deprives him of the opportunity of participating in the settlement of record of appeal.
This is why in the court of justice the rule is: he who comes to justice must come with clean hands. Justice is not a game of hide and seek. The Appellant who engages in a game of surprise and attack must be prepared for the full wrath of the court of justice if it turns out that he had not been fair to the adversary.”
PRELIMINARY OBJECTION – EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION TO AN APPEAL
“It is trite that where a preliminary objection in an appeal succeeds and is sustained there would be no need to proceed to consider the arguments put forward by learned counsel to the parties on the issues for determination on the substantive appeal. See, Attorney General Of The Federation vs. ANPP & Ors (2003) 12 SCNJ 81/82; Or (2003) 18 NWLR (PT. 851); Nepa vs.Ango (2001) 15 NWLR (PT.737) 627 and Ralph Uwazuruike vs. Attorney General Of The Federation (2007) 8 NWLR (PT. 1035) 1. In Uwazuruike’s case (Supra) his lordship; Ogbuagu, JSC held thus:
Where a preliminary objection to an appeal succeeds there would be no need to go further to consider the arguments in support of issues for determination. See, Chief Bright Onyemeh & Ors vs. Lambert Egbuchulam & Ors (1996) 5 NWLR (PT. 448) 255 AT 268; (1996) 4 SCNJ 237; Nepa vs. Ango (2001) 15 NWLR (PT. 737) 627 AT 645–646: ANPP vs. Returning Officer Abia South Senetarial Distric (Mr. Festus Ukagwu) & 2 Ors (2005) 6 NWLR (PT. 920) 140 AT 170-170; Attorney General Of The Federation Vs. ANPP & Ors (2003) 12 SCNJ 67 AT 81-82; (2003) 18 NWLR (PT. 851) 182.” (Underlined mine for emphasis).
In the same vein, the Supreme Court in Udenwa & Anor Vs. Uzodinma & Anor (2013) 5 NWLR (PT. 1346) 94 held thus:
“Preliminary Objection in a case is an objection, if upheld would render further proceedings before the court impossible or unnecessary. An objection to the court’s jurisdiction is an example of a preliminary objection.
The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same”.
ACADEMIC EXERCISE -ATTITUDE OF COURTS TO ACADEMIC EXERCISE
“Resolving the substantive appeal would be a mere academic exercise. It is immaterial that the substantive matter would have succeeded. See, Congress For Progressive Change Vs. Independent National Electoral Commission (2001) LPELR – 8257 (SC) PP. 78 – 79, Paragraphs G – E where the Apex court explained the futility of determining academic questions or issues that are no longer live and would not enure any benefit or right on the successful party. See, Ikuforiji Vs. F.R.N (2018) LPELR – 43884 (SC) P.11 C-F, Tanimola Vs. Mapping Godath Limited (1995) 6 NWLR (PT. 403) 517 and Ndulue Vs. Ibezim (2002) 12 NWLR (PT. 780) 139.
CASES CITED
None
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|Electoral Act 2010 (as amended)|