CORAM

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1. Ita George Mbaba Justice Court of Appeal

2. Patricia Ajuma Mahmoud Justice Court of Appeal

3. Peter Oyinkenimiemi Affen Justice Court of Appeal

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PARTIES

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1. ALHAJI SHUAIBU BOBBO HAMID

2. MOHAMMED ABDU MAYA

3. AMINA KABIRU

4. SHEHU AUDU

APPELLANTS 

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1. THE GOVERNOR OF ADAMAWA STATE

2. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, ADAMAWA STATE

3. ADAMAWA STATE HOUSE OF ASSEMBLY

4. ADAMAWA STATE CIVIL SERVICE COMMISSSION

5. ACCOUNTANT-GENERAL OF ADAMAWA STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LABOUR, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants were earlier appointed in April 2019 by the previous Government (of Adamawa State), to serve as Chairman and Commissioner/Members of the Civil Service Commission by the Administration of His Excellency Mohammed Umar Jibrilla, as Governor.

That appointment was terminated by the new administration by the Respondents, as per the letter dated 2/8/2019, approved by the 1st Respondent (His Excellency Hon. Ahmadu Umaru Fintiri) seeking the termination of the appointments by the 3rd Respondents (Adamawa State House of Assembly).

The 1st Respondent claimed that due process was not followed in the appointments of Appellants, and by the Exhibit B sent a letter to the 3rd Respondent to terminate the said appointments, the main reason being that the Federal Character Principle was not observed/complied with in the appointments as stipulated in Section 197(3) and 14(4) of the 1999 Constitution, as amended.

The 3rd Respondent went through the whole process of considering the request of the 1st Respondent, and terminated the said appointments of the Appellants as shown in Exhibits DW2 A1 – 6 and M.

The 1st Respondents request was founded on a lack of proper due screening by the 3rd Respondent and that the appointments were one sided.

Appellants had argued that, having been earlier appointed to offices, (with the approval and confirmation of the House of Assembly), that their appointment cannot be terminated, without compliance with Section 201 of the 1999 Constitution.

Counsel asserted that the trial Court cannot terminate the appointments of the Appellants, except for reasons of inability to discharge the functions of their office, or for reasons of misconduct. He said that issue on non-compliance with the Provisions of the Federal Character Principle, which they said, the trial Court invoked, suo motu, cannot sustain that removal of Appellants from office.

The Trial Court gave it’s ruling in favour of the Respondents.

The Appellants were dissatisfied by the decision hence filed an instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the learned trial Judge was not wrong when he dismissed Appellants’ claim as having not been proved and nullified Appellants’ appointments?

 

 

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RATIONES DECIDENDI

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COURTS – CONDUCT OF COURTS WHERE THERE IS A PRELIMINARY OBJECTION

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As is usual with this Court, we have to consider the Preliminary Objection, first, as its success can terminate the Appeal, in limine. See KLM Royal Dutch Airlines Vs Aloma (2017) LPELR – 42588 (SC); Eze Vs State (2022) LPELR – 57833 (SC). – Per I. G. Mbaba, JCA

 

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GROUNDS OF APPEAL – WHETHER A PRELIMINARY OBJECTION CAN BE RAISED BASED ON COMPLAINTS AGAINST ONE OR MORE GROUNDS OF APPEAL

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The law is trite that a quarrel against one or more grounds of appeal cannot equate or give rise to a Preliminary Objection to the hearing of the appeal, if there are other grounds of appeal that can sustain the appeal, despite the grounds complained of; that in such a situation, the objector should file a Motion on Notice, highlighting the alleged defective grounds of appeal, complained of and the complaints. See the case of DOWELL SCHLUMBERGER NIG. LTD & ORS. VS. NOAH ANIEKAN & ANOR.(2018) LPELR – 44811 (CA), where we held:

The law generally is that a party cannot be allowed to raise a preliminary objection in this Court to the hearing of a Motion, as there is no provision in our Rules for that. The Rules rather provide for a preliminary objection to the hearing of an appeal “Order 10 Rule 1 of the Court of Appeal Rules, 2016. A party is expected to file a Counter affidavit, to oppose a given motion or oppose same on points of law, when argued.”

The Order 10 Rule 1 of the Court of Appeal Rules, 2016, provides for preliminary objection to the hearing of Appeal, and it has always been interpreted to apply, only where a Respondent seeks to invoke the power of the Appellate Court to determine the appeal, in limine, not when he has a complaint against one or more grounds of appeal, seeking to strike same out. See Nwaigwe & Anor Vs Amaechi & Ors (2017) LPELR-43080 (CA); SPDC Vs Ogolo & Ors (2016) LPELR-41307 (CA); Adejumo Vs Olawaiye (2014) 12 NWLR (Pt. 1421) 252.

See also OPEYEMI v. STATE (2019) LPELR – 48764 (SC), where it was held:

“This Preliminary Objection is against certain grounds of the appeal, specifically grounds 2, 3 and 4 in a way that smacks of an academic journey into intellectual discourses and nothing more apart from taking umbrage on some grounds and not on the appeal itself. The Supreme Court had in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated this mode of raising of objection thus:- “A Preliminary Objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”. This Preliminary Objection is really a waste of the Court’s precious time which cannot terminate the appeal, the other ground would sustain the appeal assuming the grounds 2, 3 and 4 were invalid and they are not.”

Per PETER-ODILI, JSC (Pp. 8-10, paras. F-A). – Per I. G. Mbaba, JCA

 

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GROUNDS OF APPEAL – THE EFFECT OF ARGUING AN INCOMPETENT GROUND OF APPEAL WITH A VALID GROUND OF APPEAL

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It is true that arguing incompetent ground(s) of Appeal with valid ground(s) in an issue for determination of Appeal is not permitted, and doing so automatically invalidates the arguments, as the virus of the defective grounds of Appeal has infected the valid/competent ground(s). See NORTHWEST PETROLEUM & GAS COMPANY LTD & ANOR. VS. ILOH & ORS (2021) LPELR – 55509 (CA):

“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on Issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…” – Per I. G. Mbaba, JCA

 

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PARTICULARS OF ERROR – WHETHER PARTICULARS OF ERROR MUST ALWAYS BE STATED SEPARATELY FROM THE GROUNDS OF APPEAL

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It is not at every situation that particulars of error of a ground of Appeal has to be stated, separately, from the ground of Appeal, as the same (particulars) are sometimes embedded in the ground of Appeal. And it is obvious in this case, where the said ground 4 has disclosed the required particulars of error, namely that the “decision is not supported by any law and amounts to miscarriage of justice!” (Note the concluding sentence in the ground 4 of the Appeal). See also the case of IMAM & ORS. VS. SHERIFF & ORS. (2005) 4 NWLR (PT. 914) 80 at 133, which held:

“A ground of appeal which incorporates the particulars of error complained of, is good, even when the particulars are not contained under a separate heading. . .” – Per I. G. Mbaba, JCA

 

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ISSUE FOR DETERMINATION – THE IMPLICATION OF AN APPELLANT DONATING A SINGLE ISSUE FOR THE DETERMINATION OF ALL GROUNDS OF APPEAL

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Each time Appellant donates a single issue for the determination of myriads or all the grounds of Appeal filed, my understanding is that the single issue for determination of the Appeal takes care of all the grounds of the Appeal, even without the Appellant saying so. The recourse to analyzing the grounds of the appeal vis-à-vis the lone issue for determination, to determine which of the grounds flows in/with the said lone Issue of appeal, or are mentioned or traced in the wordings of the issue for determination, appears to be an attempt at taking technicality of law to ridiculous level, and unnecessary, in my opinion. – Per I. G. Mbaba, JCA

 

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APPOINTMENT – WHERE APPOINTMENTS DO NOT COMPLY WITH THE PROVISIONS OF THE CONSTITUTION

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However, Appellants never contested that findings of the trial Court, that their earlier appointments did not comply with the Federal Character Principle, enshrined in Sections 197(3) and 14(4) of the CFRN. And so whatever underlying political consideration involved in their removal, the same appeared justified, having been done by the declaration of the 3rd Respondent (The House of Assembly of the State), and on the ground of failure to comply with the provisions of Section 197(3) and 14(4) of the 1999 Constitution.

I do not think this Court, in its appellate, jurisdiction can fault that decision of the Lower Court, flowing from the Resolution of the 3rd Respondent (House of Assembly of Adamawa State), that the Appointments of Appellants needed to be reversed, and they (Appellants) removed from office, for failure to comply with the Federal Character Principle, enshrined in Section 197(3) of the 1999 Constitution (as amended), being the Law, regulating appointments of persons to the office of Chairman and Members of Civil Service Commission. The appointments of Appellants, held to have been null and void, ab initio, appears, irretrievable, in the circumstances. – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Federal Character Commission (Establishment) Act

3. Court of Appeal Rules, 2021

4. Court of Appeal Rules, 2016

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