CHIEF IMEH ALBERT AKPAN V SENATOR EFFIONG BOB & 4 ORS

CORAM

GRAIG JUSTICE, SUPREME COURT

PARTIES

CHIEF IMEH ALBERT AKPAN APPELLANTS

SENATOR EFFIONG BOB & 4 ORS

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The 1st Plaintiff/ Appellant who contested the primary election into the Akwa Ibom North East District Senatorial Seat as a candidate in the April, 2007 General Elections into the National Assembly was duly returned as the winner and party’s candidate. He was subsequently issued with a certificate of Return and his name forwarded to the 1st Defendant. After given several assurances by the PDP’s Akwa Ibom Chairman and PDP’s National Chairman (Dr.) Ahmadu Ali that he was the unequivocal candidate of the PDP in the National Assembly Election, the 1st and 2nd Defendants unilaterally removed his name from the list of candidate for the said election and replaced it with that of the 3rd Defendant. Aggrieved by the above development, the Plaintiffs/Appellants filed an originating summons against the Defendants/Respondents at the Federal High Court, Abuja seeking a declaration that 1st Plaintiff/Appellant was the winner of the above primary elections and that he was unlawfully excluded from the INEC list by the 1st Defendant/Respondent among other reliefs.  The trial Court entered judgment in favour of the Plaintiffs/Appellants and ordered the 1st Defendant to include the name of the 1st Plaintiff as the candidate of the party in place of that of the 3rd Defendant. Dissatisfied with the judgment of the trial Court, the 3rd Defendant appealed to the Court of Appeal where the judgment of the trial Court was set aside. Piqued with the judgment of the Court of Appeal, the 1st Plaintiff now Appellant has appealed to the Supreme Court.

HELD

Appeal dismissed

ISSUES

1. Whether it was proper for the Court of Appeal to have countenanced and considered “arguments” in support of issue No.2 as formulated by the main appellant when the said argument had been struck out along with issue No.3 same having been argued together. ?

2. Having resolved issue No.1 in the main appeal before the Court of Appeal in favour of the 1st respondent and having struck out all argument in support of issues Nos. 2 & 3, was the Court of Appeal right in not dismissing the main appellant’s appeal.?

3. Was it proper for the Court of Appeal to have entertained the 5th respondent’s/cross appellant’s issue No.1 when:[a] it did not arise from the decision of the trial court and [b] the decision of the trial court that none of the parties raised the issue of cogent and verifiable reason was not appealed against and [c] The 5th respondent/cross appellant never sought let alone obtained leave to raise a fresh issue on appeal.?

RATIONES DECIDENDI

GROUND OF APPEAL- MEANING OF GROUND OF APPEAL

“Authorities are agreed on the legal definition of a ground of appeal. It is said to be the error of law or facts alleged by an appellant as the defect in the judgment appealed against upon which reliance has been placed to set it aside. In other words, it is the reason(s) why the decision is considered wrong by the aggrieved party. See: Olaleye v. the State (1991) 1 NWLR (Pt.170) 708 at 718. Azatse v. Zegcor (1994) 5 NWLR (Pt.342) 76 at 83; Idika v. Erisi (1988) 2 NWLR (Pt.78) 503 at 578.” PER MUHAMMAD, J.S.C.

GROUND OF APPEAL- INSTANCES WHERE A GROUND OF APPEAL CAN ARISE

“From the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the text of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a court from which the appeal emanates.
e) from commissions or omissions by the court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.”
PER MUHAMMAD, J.S.C.

PROCEDURE FOR DETERMINATION OF SUIT WHERE THERE ARE PENDING MOTIONS- WHERE THERE ARE PENDING MOTIONS /PROCESSES IN A SUIT, THE COURT SHOULD DISPENSE WITH THEM BEFORE THE DETERMINATION OF THE SUBSTANTIVE SUIT

“The trite position of the law is that where there are pending processes before a court, such as motions or other applications, such issues have to be dispensed with before a final decision is taken on the main action or appeal. See: Irolo v. Uka (2002) 14 NWLR (Pt.786) 195 at 225 D – F. It is the duty of a court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the court failed to do so, without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every court has a duty to hear, determine and resolve such questions. Thus, it would be wrong of a court, whose attention has been drawn to a pending process, such as Notice of withdrawal of appeal or motion on Notice to proceed to treat the appeal to finality when such processes have not been pronounced upon by it.” PER MUHAMMAD, J.S.C.

CASES CITED

1. People V. Bernhardt 222 C. A.2 d 567,35 Cal Rptr. 4012. Irolo v. Uka (2002) 14 NWLR (Pt.786) 195

STATUTES REFERRED TO

1. Constitution of the federal Republic of Nigeria, 1999

2. Court of Appeal Act, Cap. (C36 LFN, 2004 as amended)

3. Court of Appeal Rules 2007 (as amended)Electoral Act, 2006

4. Federal High Court Rules, 2000

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