OBONG (BARR) VICTOR AKPAN & ANOR V HON. (BARR) ONOFTOK AKPAN LUKE & 2 ORS
April 28, 2025HON. JOHN AKPAN HARRY V HON. MARK UDO ESSET
April 28, 2025Legalpedia Citation: (2015-10) Legalpedia (SC) 35279
In the Supreme Court of Nigeria
Tue Oct 20, 2015
Suit Number: SC.676/2015
CORAM
PARTIES
JAFAR ABUBAKAR APPELLANTS
ALHAJI IBRAHIM HASSAN DANKWAMBO
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Respondent who contested under the platform of the Peoples Democratic Party was declared the winner of the Gombe state Governorship Election having scored 285,369 votes. The candidate of the All Progressives Congress, (APC) came in second with 205,132 votes, while the Appellant a candidate of African Democratic Congress (ADC) scored 848 votes. Dissatisfied with the result of the election as declared by the 4th Respondent INEC, the Appellant as the petitioner filed a petition at the Election Petitions Tribunal Gombe State seeking amongst others: that Alhaji Ibrahim Hassan Dankwambo of the Peoples Democratic Party, the 3rd Respondent, was not duly elected or returned as Governor of Gombe State not having scored the highest number of lawful votes cast at the election and he has not scored not less than one quarter of all the votes cast in each of at least two thirds of all the Local Government Areas in Gombe State. The 1st Respondent filed a Reply to the Petition and also a Notice of Motion seeking relief for striking out of the petition on the ground that the Petition was prepared and signed by a solicitor whose name is not on the roll of lawyers called to the Nigerian Bar and does not belong to a lawyer admitted to practice law in Nigerian amongst others. The tribunal in a considered ruling found that the name indeed is not contained on the Roll of Legal Practitioners in Nigeria and as such cannot validly sign the petition but that since the petitioner also signed the petition, same is competent. The Petitioner/Appellant still not satisfied with the ruling, filed a notice of Appeal but the Court of Appeal struck the appeal on grounds that the Notice of Appeal contained grounds of mixed law and facts for which the Appellant neither sought nor obtained the leave of court, hence, the Petitioner/Appellant has further appealed to the Supreme Court.
HELD
Appeal Allowed
ISSUES
1. Whether the Court of Appeal was right in holding that Grounds 1,2,4,5, and 6 of the Appellant’s Notice of Appeal filed on17/7/2015 are at best grounds of mixed law and fact requiring leave of the court?
2. Whether in consideration of the facts and circumstances of this case, the Court of Appeal was right in dismissing the Appellant’s appeal?
RATIONES DECIDENDI
APPEAL – OVERRIDING CONSIDERATION IN THE HEARING OF AN APPEAL
“For all intents and purposes, an overriding consideration in the hearing of an appeal is whether or not the notice of appeal is competent. For instance, where a relief is incontradiction with a ground of appeal, it is not the business of the court to refuse the hearing of such appeal. In otherwords, the hearing of an appeal should not be predicated on whether or not the ground therein can sustain the relief sought by the appellant in the notice of appeal.” PER C. B. OGUNBIYI, J.S.C
NOTICE OF APPEAL – FILING OF TWO OR MORE NOTICES OF APPEAL IS NOT PROHIBITED BY THE LAW
“Filing of two or more notices of appeal is not prohibited by the law. All the appellant needs to do is to settle his mind on which of the notices he will choose in pursuing his appeal. See: Korede v. Adedokun (2001)15 NWLR (Pt.736) 483.” PER. I. T. MUHAMMAD, J.S.C
GROUND OF APPEAL – A COMPETENT GROUND OF APPEAL CAN SUSTAIN AN APPEAL
“I am in agreement with the learned counsel for the appellant that the law is well settled that where there exists a competent ground of appeal, same can sustain the appeal. See: Dr. Abdullahi Baba Abdul v. Congress for Progressive Change (CPC) &Ors (2013) 5 SCNJ 378; VabPetroleum Inc. v. Mr. Mike Momah (2013) 1 SCNJ 289.It is not for the court at that point in time to delve into whether the appeal would succeed or not. See: 7Up Bottling Co. Ltd. v. Abiola& Sons Ltd. (2001) 13 NWLR (Pt.730) 169.”PER. I. T. MUHAMMAD, J.S.C
NOTICE OF APPEAL – EFFECT OF FAILURE TO SEEK LEAVE OF COURT BEFORE FILING A NOTICE OF APPEAL ON GROUND OF MIXED LAW AND FACT WHERE LEAVE OF COURT IS A PRE-CONDITION
“The position of the law is that where leave which means permission is a pre-condition before an Appellant can file a Notice of Appeal, containing grounds of mixed law and fact, an Appellant who files a Notice of Appeal without satisfying or obtaining that pre-condition would have his process thrown out.”PER O. RHODES-VIVOUR, J.S.C
RIGHT OF AN APPELLANT- AN APPELLANT MUST BE ALLOWED TO ARGUE HIS GROUND OF APPEAL
“An Appellant must be allowed to argue his appeal once he has, even a single competent Ground of Appeal.” PER O. RHODES-VIVOUR, J.S.C
NOTICE OF APPEAL – DUTY OF THE COURT WHERE THERE EXIST COMPETENT AND INCOMPETENT GROUNDS IN A NOTICE OF APPEAL
“The well settled position of the law is that where there are incompetent grounds and competent grounds in a Notice of Appeal the incompetent grounds would be struck out and the competent grounds would sustain the appeal. See Ojukwu v. Onyeador (1991) 7 NWLR (pt.203) p.286.” PER O. RHODES-VIVOUR, J.S.C
GROUND OF APPEAL – A COMPETENT GROUND OF APPEAL CAN SUSTAIN AN APPEAL
“I am in agreement with the learned counsel for the appellant that the law is well settled that where there exists a competent ground of appeal, same can sustain the appeal. See: Dr. Abdullahi Baba Abdul v. Congress for Progressive Change (CPC) &Ors (2013) 5 SCNJ 378; VabPetroleum Inc. v. Mr. Mike Momah (2013) 1 SCNJ 289.It is not for the court at that point in time to delve into whether the appeal would succeed or not. See: 7Up Bottling Co. Ltd. v. Abiola& Sons Ltd. (2001) 13 NWLR (Pt.730) 169.”PER. I. T. MUHAMMAD, J.S.C
GROUND OF APPEAL – A COMPETENT APPEAL CAN BE SUSTAINED ON A SINGLE GROUND OF APPEAL.
“The law is well settled that an appeal is competent and can be sustained on a single ground of appeal only. In other words, an omnibus ground of appeal alone without more is sufficient, as competent and valid, a notice of appeal before a court.”PER C. B. OGUNBIYI, J.S.C
PRINCIPLE OF FAIR HEARING – REFUSAL TO HEAR AN APPLICATION FOR AMENDMENT OF A NOTICE OF APPEAL CERTAINLY VIOLATES THE PRINCIPLE OF FAIR HEARING.
“If a court will refuse to listen to an applicant who proposes an amendment to his notice of appeal which will afford him greater opportunity to put his appeal in proper shape, then that is certainly violating the time honoured principle of fair hearing. See: Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt.730) 403.”PER. I. T. MUHAMMAD, J.S.C
NOTICE OF APPEAL – FILING OF TWO OR MORE NOTICES OF APPEAL IS NOT PROHIBITED BY THE LAW
“Filing of two or more notices of appeal is not prohibited by the law. All the appellant needs to do is to settle his mind on which of the notices he will choose in pursuing his appeal. See: Korede v. Adedokun (2001)15 NWLR (Pt.736) 483.” PER. I. T. MUHAMMAD, J.S.C
RIGHT OF AN APPELLANT- AN APPELLANT MUST BE ALLOWED TO ARGUE HIS GROUND OF APPEAL
“An Appellant must be allowed to argue his appeal once he has, even a single competent Ground of Appeal.” PER O. RHODES-VIVOUR, J.S.C
APPEAL – OVERRIDING CONSIDERATION IN THE HEARING OF AN APPEAL
“For all intents and purposes, an overriding consideration in the hearing of an appeal is whether or not the notice of appeal is competent. For instance, where a relief is incontradiction with a ground of appeal, it is not the business of the court to refuse the hearing of such appeal. In otherwords, the hearing of an appeal should not be predicated on whether or not the ground therein can sustain the relief sought by the appellant in the notice of appeal.” PER C. B. OGUNBIYI, J.S.C
PRINCIPLE OF FAIR HEARING – REFUSAL TO HEAR AN APPLICATION FOR AMENDMENT OF A NOTICE OF APPEAL CERTAINLY VIOLATES THE PRINCIPLE OF FAIR HEARING.
“If a court will refuse to listen to an applicant who proposes an amendment to his notice of appeal which will afford him greater opportunity to put his appeal in proper shape, then that is certainly violating the time honoured principle of fair hearing. See: Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt.730) 403.”PER. I. T. MUHAMMAD, J.S.C
GROUND OF APPEAL – A COMPETENT APPEAL CAN BE SUSTAINED ON A SINGLE GROUND OF APPEAL.
“The law is well settled that an appeal is competent and can be sustained on a single ground of appeal only. In other words, an omnibus ground of appeal alone without more is sufficient, as competent and valid, a notice of appeal before a court.”PER C. B. OGUNBIYI, J.S.C
NOTICE OF APPEAL – EFFECT OF FAILURE TO SEEK LEAVE OF COURT BEFORE FILING A NOTICE OF APPEAL ON GROUND OF MIXED LAW AND FACT WHERE LEAVE OF COURT IS A PRE-CONDITION
“The position of the law is that where leave which means permission is a pre-condition before an Appellant can file a Notice of Appeal, containing grounds of mixed law and fact, an Appellant who files a Notice of Appeal without satisfying or obtaining that pre-condition would have his process thrown out.”PER O. RHODES-VIVOUR, J.S.C
NOTICE OF APPEAL – DUTY OF THE COURT WHERE THERE EXIST COMPETENT AND INCOMPETENT GROUNDS IN A NOTICE OF APPEAL
“The well settled position of the law is that where there are incompetent grounds and competent grounds in a Notice of Appeal the incompetent grounds would be struck out and the competent grounds would sustain the appeal. See Ojukwu v. Onyeador (1991) 7 NWLR (pt.203) p.286.” PER O. RHODES-VIVOUR, J.S.C
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria (as amended)
Electoral Act 2010(as amended)Legal Practitioners Act Cap. LI I, LFN, 2004
