Between
DAVID SABO KENTE
and
1. DARIUS DICKSON ISHAKU
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
Following the Governorship Primary Elections of the Peoples Democratic Party (PDP) conducted on 11th December, 2014, the Appellant herein filed a suit against the Respondents at the Federal High Court, Taraba Judicial Division sitting in Jalingo. Vide an Originating Summons filed on the 1st April, 2015, the Appellant herein sought for the determination of one lone question as follows:
Whether the 2nd defendant for the purpose of selecting candidate for Governorship primary for Taraba State for the 2015 general elections can adopt a procedure other than that stipulated in the Electoral Act, 2010 (as amended), the 2nd defendants Constitution 2012 and the Electoral guidelines for primary elections 2014.
Thereafter, he sought the following reliefs from the lower Court:
1. A DECLARATION that the 2nd defendant cannot adopt a procedure for its primary election for Taraba State Governorship candidate for the 2015 General elections other than that provided under section 87(4) of the Electoral Act 2010 (as amended), the 2nd defendants Constitution 2012 and its Electoral Guidelines for primary election.
2. A DECLARATION that the 2nd defendant having not complied with the provisions of section 87(4) of the Electoral Act 2010 (as amended), section 50 of the 2nd defendants Constitution 2012 and the provisions of its partys guidelines for Governorship primary election 2014 has not validly conducted primary election for the purpose of nominating a candidate for Governorship election for the 2015 general election in Taraba State.
3. AN ORDER nullifying the purported primary election conducted by the 2nd defendant on the 11th December, 2014 for the purpose of selecting its candidate for the 2015 Governorship election in Taraba State.
4. AN ORDER restraining the 3rd defendant from accepting and/or recognizing or dealing in any manner with the name of the 1st defendant as the candidate of the 2nd defendant for the 2015 Governorship election in Taraba State.
5. A DECLARATION that the 2nd defendant having not conducted a Governorship primary election in Taraba State in accordance with the Electoral Act 2010 (as amended), the 2nd defendant guidelines for primary election 2014 and its own Constitution 2012 has no candidate for the 2015 Governorship election in Taraba State.
6. AND FOR SUCH FURTHER ORDER(S) as the Honorable Court may deem fit to make in the circumstances of this suit.
In support thereof was an 11 paragraph affidavit deposed to by the Plaintiff himself. Following the service of the Originating Summons, the 1st and 2nd Respondents entered conditional appearances and thereafter filed two separate Notices of preliminary objection dated 23rd April, 2015 and 28th April, 2015 respectively, wherein they urged the lower Court to either dismiss or strike out the suit for being grossly incompetent or null and void. In response thereto, the Appellant filed a counter affidavit dated 18th May, 2015. As for the 3rd Respondent (INEC), it neither entered an appearance in the suit nor did it file any court process in response to either the Originating Summons or the preliminary objections raised.
Upon hearing arguments advanced by the parties on the preliminary objections, the lower Court issued two Rulings thereon on the same day, i.e. 17th September, 2015, wherein it dismissed the suit. Piqued and peeved by the Ruling, (contained at pages 246 to 292 of the printed Record of Appeal), the Appellant filed an Appeal against it dated 20th October, 2015, on the 21st October, 2015 vide a Notice of Appeal (at pages 294-303 of the Record).
The pith of the facts leading to this Appeal from the Appellants perspective is that he, the Appellant, was a member of the Peoples Democratic Party, (hereinafter referred to as PDP, 2nd Respondent herein), duly registered at Kente Ward in Wukari Local Government Area of Taraba State. He expressed his ambition to participate in the Primary Election of the PDP which was held for the purpose of nominating its candidate for the 2015 Governorship election in Taraba State. He filled and submitted the requisite forms, i.e. the Expression of Interest form and the Nomination form, and paid the administrative charges thereto. Thereafter, he submitted himself for the screening exercise before the screening committee set up by the PDP. The Committee assessed and cleared him to participate in the Governorship Primary Election of the PDP to elect its candidate for the 2015 Governorship Election in Taraba State.
Subsequently, the PDP, in line with the provisions of the Electoral Act, 2010 (as amended) and the Constitution and Guidelines of the PDP, organized congresses to elect delegates for the purpose of the Primary Election, after which the Appeal Panel of the PDP heard and dismissed various objections/protests of members who felt aggrieved with the results of the congresses. However, without any further announcement or publication, the PDP fixed the Primary Election for 11th December, 2014, scheduled Abuja to be the venue of the election, and excluded the elected delegates from participation in the election. Nevertheless, the Appellant, having received information on this, proceeded to Abuja and participated as an aspirant in the Governorship Primary Election. However, subsequently aggrieved by the conduct of the Primary Election, the Appellant filed the suit which is now the subject of this Appeal.
The 1st and 2nd Respondents did not join issues on the Plaintiffs claim in the Originating Summons, having failed to file any counter affidavits contesting the facts in the Appellants affidavit. Instead, they filed two separate Notices of Preliminary Objection challenging the locus standi of the Appellant to institute the action itself, the cause of action, the competence of the originating process and the jurisdiction of the lower Court to hear and determine the suit. To buttress these objections, the Respondents in their respective affidavits deposed that the Appellant had formally withdrawn from the membership of the 2nd Respondent, PDP, did not participate in the PDP Primary Election, jumped ship to another Party, i.e. the Social Democratic Party (SDP), and subsequently was a candidate representing the SDP in the 2015 Governorship Election in Taraba State. After hearing arguments from the parties on the objections, the lower Court ruled sustaining the preliminary objections, and consequently struck out the suit of the Appellant.
From the perspective of the 1st and 2nd Respondents, the facts germane to this Appeal are that, after the Appellant filed his Originating Summons seeking the determination of the sole issue and the reliefs (as reproduced earlier in the body of this Judgment), the 2nd Respondent filed a Notice of Preliminary Objection to the hearing of the suit, contending that the Appellant had no interest in the matter because he had left the 2nd Respondent (PDP) and joined the SDP, on whose platform he subsequently contested the Governorship Election of Taraba State. It was also contended that the Appellant did not participate in the Primary Election of the PDP (2nd Respondent) which he complained about in the Originating Summons. The 1st Respondent on his own part also filed a Notice of Preliminary Objection to the hearing of the suit. While reiterating the points canvassed by the 2nd Respondent, the 1st Respondent in addition, contended that the Appellant did not seek and obtain the leave of the lower Court to serve the Originating Summons outside jurisdiction, and also that the Originating Summons did not bear an endorsement for service outside jurisdiction. In response to these objections and the affidavits filed in support thereof, the Appellant filed a counter affidavit where he failed to counter the deposition that he was the flag bearer of the Social Democratic Party (SDP) at the Governorship Election.
As for the 3rd Respondent, (INEC), her statement of the facts leading to the Appeal is a combination of the facts as stated by both the Appellant and the 1st and 2nd Respondents. I therefore see no need to reproduce it again here.
At the hearing of the Appeal on 23rd May, 2016, learned Counsel for the 1st and 2nd Respondents, E.A. Ibrahim Effiong Esq., led by A.J. Akanmode Esq., and M.I. Siman Esq., and appearing with A.B. Ahmad Esq., argued their Notice of Preliminary Objection to the hearing of the Appeal filed on 09-02-16. He formulated three issues for determination by the Court from the five grounds of objection set out therein. The arguments thereon are contained at pages 6-18 of the 1st and 2nd Respondents Amended Brief of argument, which he adopted in urging the Court to dismiss the Appeal on Ground (v) of the Notice of objection. In the alternative, Counsel prayed the Court to strike out the Appeal based on Grounds (i) (iv) of the objection. On his part, J. Olabode Makinde, Esq., learned Counsel for the 3rd Respondent (INEC), stated that he was not opposed to the objection raised to the hearing of the Appeal by the 1st and 2nd Respondent.
However, Abbas Ajiya Esq., learned Counsel for the Appellant vehemently opposed the 1st and 2nd Respondents Preliminary Objection and incorporated the Appellants arguments in this vein at pages 1-2 of the Appellants Reply Brief of argument. He adopted the arguments contained therein as his response to the objection, and urged the Court to dismiss same as lacking in merit, and to proceed to hear the Appeal.
Thereafter, learned Counsel for the 3rd Respondent (INEC), J. Olabode Makinde Esq., who had similarly filed a Notice of Preliminary Objection challenging the competency of the Appeal on 10-03-2016, adopted the arguments in support thereof contained at pages 6-10 of the 3rd Respondents Brief of argument deemed filed on 23-02-2016, and urged the Court to strike out the Appeal for the reasons canvassed therein. Ibrahim Effiong Esq., on behalf of the 1st and 2nd Respondents, associated himself with the arguments canvassed by the 3rd Respondent. On his part, Abbas Ajiya, Esq., stated that he did not file a Reply Brief in answer to the 3rd Respondents objection because the objection is no different from that of the 1st and 2nd Respondents. Consequently, he adopted the Appellants Reply to the 1st and 2nd Respondents objection as also his response to the 3rd Respondents objection. He again urged the Court to discountenance the objection and proceed to hear the Appeal. Rulings on the two sets of preliminary objections were therefore reserved to be delivered along with the Judgment in the substantive Appeal.
In respect of the substantive Appeal, Mr. Ajiya, learned Counsel for the Appellant, submitted that the Appeal is against the Ruling of the Federal High Court sitting in Jalingo delivered on 17-05-2015, which Ruling is contained at pages 246 to 258 of the printed Record of proceedings. As there were two Rulings delivered by the Court on the same date, he clarified that there is no Appeal against the second Ruling contained at pages 259-292 of the Record. The Notice of Appeal filed on 22-10-2015 wherein the Appellant complained on nine (9) grounds, is at pages 294 to 303 of the Record. The Appellant adopted and relied on the arguments in the Appellants Brief of argument filed on 23-12-2015 in urging the Court to allow the Appeal. From the nine grounds of appeal, Counsel distilled four issues for determination, which issues were duly tied to the grounds of appeal. Upon being served with the 1st and 2nd Respondents Brief of argument, the Appellant filed a Reply Brief on 09-03-2016. Learned Counsel adopted the arguments contained at pages 2 to 6 thereof as the Appellants arguments in response to the arguments of the 1st and 2nd Respondents on the Appeal. Once again, he urged the Court to allow the Appeal.
In opposing the Appeal, Mr. Ibrahim Effiong adopted and relied on the arguments canvassed in the 1st and 2nd Respondents Amended Brief of argument deemed duly filed on 23-05-2016, particularly at pages 18 to 27 thereof, in urging the Court to disallow the Appeal and dismiss same. Counsel filed an additional list of authorities on 23-05-2016.
On his part, Mr. Makinde, in the 3rd Respondents Brief of argument deemed filed on 23-03-2016, adopted issues 1 and 2 distilled by the Appellant from grounds 1 to 4 of the grounds of appeal. He however stated that the 3rd Respondent did not respond to the two other issues distilled from the other grounds of appeal. He adopted his arguments at pages 11-15 of the said Brief in urging the Court to dismiss the Appeal.
At the close of arguments of Counsel, the Court raised two issues suo motu and invited all Counsel involved in the Appeal to address it thereon. The issues were:
1. What does service outside jurisdiction mean within the confines of the Federal High Court (Civil Procedure) Rules, 2009?
2. What court process before the trial Court determines locus standi?
In answer to the first question, Mr. Ajiya, learned Counsel for the Appellant, submits that service outside jurisdiction is out of the territorial jurisdiction of the Federal High Court sitting in Jalingo, which jurisdiction comprises Taraba State. He submits that whereas Section 19 of the Federal High Court Act, 2004 provides that service outside jurisdiction is outside Nigeria; the Federal High Court (Civil Procedure) Rules, 2009 provides that service outside jurisdiction is service outside Taraba State. In respect of the second question, Mr. Ajiya, submits that it is the Plaintiffs Statement of Claim that should be examined in order to determine whether there are facts to donate locus standi.
In his response to the first question, Mr. Ibrahim Effiong, learned Counsel for the 1st and 2nd Respondents submits that, while being aware of Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, the Supreme Court decision in MV Arabella V NAIC (supra) cited in paragraph 6.5 of the 1st and 2nd Respondents Brief of argument, still subsists because it interpreted Section 97 of the Sheriffs and Civil Process Act, Cap S6 Laws of the Federation of Nigeria, 2004. On the second issue, Counsel submits that it is the originating process of the Plaintiff that determines whether a Plaintiff has locus standi to present his claim. He contends that in the instant case, the lower Court acted accordingly and found no facts donating locus standi.
In his submission, Mr. Makinde, learned Counsel for the3rd Respondent, was of the view that we can only be well-guided by the current Rules of Court on the issue. He however submits that the provisions of the Sheriffs and Civil Process Act take precedence over the Rules of Court. On the issue of locus standi, Counsel agreed that it is the Plaintiffs originating process that should be examined in order to determine locus standi.
It is settled law that a preliminary objection is a special procedure whereby a respondent may contend the competence of the Appeal, and if upheld, will result in the striking out of the Appeal. It seeks to provide an initial objection before the actual commencement of the thing being objected to. The fundamental object of a preliminary objection therefore is essentially to contend that the Appeal is incompetent and fundamentally defective, and thus should be discountenanced by the Court. It is meant to consider the issue of jurisdiction or competence of the court to entertain the suit. This explains the rationale of according priority to the disposal of the objection before delving into the determination of the Appeal on the merits. This is so because, once the objection is sustained, the appeal becomes liable to be aborted. Thus, the purpose of a preliminary objection, if successful, is to terminate the hearing of the appeal in limine either partially or in toto. It seeks to determine a bad process in limine upon grounds of law, and thereby saves all parties involved from engaging in a futile exercise. This purpose will be defeated if the objection is not taken timely as a preliminary issue. See SPDC Nig Ltd V Agbara (2015) LPELR-SC.693/2013; Iwuji V Gov. Imo State (2014) LPELR-CA/PH/202M/2005; Akpan V Bob (2010) LPELR-SC.135/2009; Hassan V Aliyu (2010) LPELR-SC.170/2009; Suleiman V Zakari (2009) LPELR-CA/J/EP/HR/322/07; Fabunmi V Ajayi (2008) 37 WRN 81 at 93; (2007) ALL FWLR (Pt. 358) 1067 at 1094; Abia V CRSPI Ltd (2007) 28 WRN 150 at 164; NEPA V Ango (2001) 5 NWLR (Pt. 137) 627; Manson V HES (Nig) Ltd Ndigwe V Nwude (1999) 11 NWLR (Pt. 626) 314 at 331.
Therefore, in the light of the two sets of preliminary objections raised to the hearing of the Appeal, it is incumbent on this Court to first attend to them before looking into the substantive Appeal, and to decide whether or not there is a competent Appeal to be determined by this Court in the first place. For purposes of expedience and convenience, I hereby consolidate the two Notices of preliminary objection filed by the 1st and 2nd Respondents on the one hand, and that filed by the 3rd Respondent on the other, to be determined together in this Ruling.
RULING ON PRELIMINARY OBJECTIONS
The 1st and 2nd Respondents Notice of preliminary objection to the hearing of the Appeal was filed on 09-02-16. The objection is anchored on five grounds which are as follows:
(i) Ground one of the Appeal is completely alien in that it is not borne out of the printed Record and therefore issue one is distilled from competent and incompetent grounds, and therefore is incompetent.
(ii) Issue two is said to be distilled from Grounds 3 and 4 when in fact Ground 3 is extraneous from the Record, thus incompetent.
(iii) Issue three, said to be distilled from Ground five of the Appeal indeed has no correlation whatsoever with the said Ground, thus rendering the issue incompetent.
(iv) Issue four, said to be formulated from Grounds 6 and 7 is indeed a total stranger to the said Grounds, thus rendering the issue incompetent.
(v) The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the Appellant, the fortune of the Appeal would not change in the face of some salient findings against the Appellant not appealed against at all, thus rendering the Appeal grossly incompetent.
From these grounds, the 1st and 2nd Respondents crafted the following three issues for determination:
1. Whether in the face of the Grounds of Appeal, with particular reference to 1 and 3, and issues 1 and 2 formulated therefrom, jointly with grounds 2 and 4, the said issues are not rendered incompetent. (Grounds 1 and 2 of the objection)
2. Taking into cognizance the fact that issues for determination 3 and 4 have no correlation with the Grounds they are said to be distilled from, whether the said issues are not rendered incompetent (Grounds 3 and 4 of the objection)
3. Whether in the face of damaging specific findings of the Court below against the Appellant which this Appeal is unrelated, especially to the effect thus:
i. that the Appellant failed to disclose the requisite locus standi and cause of action with particular reference to the Preliminary objection of the 1st Respondent, thus rendering the suit incomplete (pages 288-290);
ii. that the suit of the Appellant before the lower Court was non justiciable and thus incapable of being resolved through judicial process (page 209 lines 13-28); and
iii. that the suit of the Appellant is statute-barred (pages 291-292); this Appeal is not rendered academic (Ground 5 of the objection).
The 3rd Respondent, (INEC), on her part, anchored her preliminary objection on the following four grounds:
1. The Appellants Notice of Appeal in Appeal No. CA/YL/106/2015 is incompetent and cannot be entertained by the honourable Court of Appeal.
2. There is no valid Appeal before the Court of Appeal.
In the alternative,
3. Issues 3 and 4 raised by the Appellant are not distillable from Grounds 5, 6 and 7 of the Grounds of Appeal.
4. Grounds 5, 6 and 7 are deemed abandoned thereby rendering the Appellants Appeal unsustainable.
Counsel for the 3rd Respondent did not however distill any issue for determination from these grounds. In addition, aside from the objection raised to grounds 5, 6 and 7 of the Grounds of Appeal, she did not raise any objection to grounds 1 to 4 of the Grounds of Appeal, and so no arguments were canvassed thereon.
From the two sets of grounds of objection, it is evident that, apart from grounds 1 and 2 of the 3rd Respondents grounds, all the other grounds of objection center on the competence or otherwise of the grounds of appeal vis-à-vis the issues distilled for determination by the Appellant. Since grounds 1 and 2 of the 3rd Respondents preliminary objection relates to the competence or otherwise of the Notice of Appeal itself filed on 22-10-2015, it shall be addressed first.
The grounds in support of the 3rd Respondents preliminary objection were mainly two, and they are as follows:
1. The Appellants notice of appeal in this appeal no. CA/YL/106/2015 is incompetent and cannot be entertained by the honourable court of appeal.
2. There is no valid Appeal before the court of appeal.
Grounds 3 and 4 of the objection are alternative grounds of objection in the event that Grounds 1 and 2 do not succeed and the Appeal is found to be competent. Learned Counsel for the 3rd Respondent submits that, from the Notice of Appeal filed by the Appellant dated 21st October, 2015 and filed on 22nd October, 2015 (at pages 294-303 of the Record), the decision which the Appellant has appealed against is non-existent. He argues that, whereas the Appellant claims to be dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo as contained in the Ruling of D.U. Okorowo, J. dated 17th September, 2015 in suit number FHC/TAR/CS/5/2015, there is no such suit in existence between her (INEC) and the Appellant, just as there is no decision of the Federal High Court, Jalingo in suit number FHC/TAR/CS/5/2015, which could have been the subject of an appeal between the Appellant and the 3rd Respondent.
Counsel submits that, by Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), an Appeal must relate to the decision of the lower court. Thus, the non-existence of a decision in the suit to which the Appellants Appeal relates, vitiates his Notice of Appeal dated 21st October, 2015, making the Appeal incompetent. He relies on Odunze V Nwosu (2007) 31 NSQCR 1 at 28. He therefore urged the Court to strike out the Notice of Appeal.
As afore-stated, the Appellant in his Reply Brief of argument did not address any of the grounds of objection raised by the 3rd Respondent. Instead, in oral arguments before the Court, Counsel submitted that he was adopting his arguments in respect of the 1st and 2nd Respondents objection, in reply to the 3rd Respondents objection. This however did not take into consideration the fact that this ground of objection was only raised by the 3rd Respondent. The 1st and 2nd Respondents did not canvass such a ground in their Brief of argument. Thus, as it stands, there is absolutely no response to the 3rd Respondents objection on this crucial ground.
Findings:
The initiating process for an Appeal before an appellate court is the Notice of Appeal. The Notice of Appeal contains the subject matter of what the appeal is all about. See Dingyadi V INEC (2010) LPELR-952(SC) at 60; (No. 2) (2010) 18 NWLR (Pt. 1224) 154; & Anadi V Okoli (1977) LPELR-479(SC) at 3-4. It is a very important document because it is the foundation and substratum of every Appeal. Any defect will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. It is the Notice of Appeal which gives the court jurisdiction to hear an appeal. Once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the court to consider.
Thus, any defect in the Notice of Appeal goes to the root of the appeal and robs the court of jurisdiction to hear the appeal. If no proper Notice of Appeal has been filed, then there is no appeal for the court to entertain. See: FBN Plc V Maiwada (2012) LPELR-9713(SC); FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) at 49; Uwazurike V AF Federation (2007) 8 NWLR (Pt. 1035) 11; AG Federation V Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187; CBN V Okojie (2004) 10 NWLR (Pt. 882) 488; & Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622.
An examination of the Notice of Appeal filed at the Federal High Court Taraba State Division sitting in Jalingo discloses that it is a complaint against the Ruling of the Court delivered on 17th September, 2015 in suit number FHC/TAR/CS/5/15. To quote directly from page 1 of the said Notice (contained at page 294 of the printed Record of Appeal), it states thus:
NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D.U. Okorowa, Judge, dated the 17th day of September, 2015, in SUIT NO: FHC/TAR/CS/5/15, do hereby appeal to the Court of Appeal, Holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves set out in paragraph 4 (Emphasis supplied)
It would amount to flogging a dead horse to belabor this issue, as the facts are explicit and obvious on the face of the Notice, and so eloquently speak for themselves. The Ruling complained of in this Notice of Appeal is a Ruling of the said Court in suit number FHC/TAR/CS/5/15; whereas the Ruling of the lower Court (at pages 246 to 258 of the Record) is in respect of suit number FHC/TAR/CS/14/15. Consequently, it is patently obvious that the Notice of Appeal (at page 294 of the Record of Appeal) has no bearing on the said Ruling of the Federal High Court Taraba Division. Since there is therefore a disconnect and no nexus between decision appealed against in the Notice of Appeal and the Ruling of the trial Court, the Notice of Appeal is fatally defective and indubitably incompetent. Consequently, there is no appeal against the decision issued by the Federal High Court Taraba Division sitting in Jalingo on 17th September, 2015 in suit number FHC/TAR/CS/14/15 between David Sabo Kente V Darius Dickson Ishaku & 2 others. That being the case, this Court has no jurisdiction to entertain the said Notice of Appeal dated 21st October, 2015 and filed on 22nd October, 2015, as same is appealing against an unknown, strange and alien decision which is not before this Court in the Appeal entered in this Court by virtue of the Record of proceedings transmitted on 16th November, 2015. See FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) at 50. It is no wonder that the Appellant was thunderstruck, speechless and had no answer to these two grounds of objection raised by the 3rd Respondent. It would however have been more honorable and, at the same time, would have saved precious judicial time if Counsel had, upon realizing this fundamental error to its originating process, simply and properly withdrawn the Appeal from the onset. The slur is unquestionably fatal to the Appeal. As a result, the Notice of Appeal dated 21st October, 2015 and filed on 22nd October, 2015, as well as the Appeal in its entirety, is struck out on the ground of incompetence.
Having struck out the Appeal, this Judgment should ordinarily end here. However, being an intermediate Court, I will still look into the issues for determination formulated from the other grounds of the preliminary objection to the Appeal, as canvassed by Counsel for the 1st and 2nd Respondents, as well as the grounds of objection of the 3rd Respondent. I therefore intend to address issue one distilled from grounds 1 and 2 of the 1st and 2nd Respondents grounds; and then address issue 2 distilled from grounds 3 and 4 of the 1st and 2nd Respondents grounds taken together with the alternative grounds 3 and 4 of the 3rd Respondents grounds of objection.
Issue one:
Whether in the face of the Grounds of Appeal, with particular reference to grounds 1 and 3, and issues 1 and 2 formulated therefrom, jointly with grounds 2 and 4, the said issues are not rendered incompetent. (Grounds 1 and 2 of the objection)
Under this issue, learned Counsel for the 1st and 2nd Respondents submits that issue one for determination in the Appellants Brief of argument was distilled from grounds 1 and 2 of the Grounds of Appeal. However, ground one has no relationship with the decision of the lower Court since the suit was filed at the Registry of the Federal High Court Taraba Division, and not the Abuja Division of the Federal High Court. He therefore contends that the ground is incompetent. That being the case, issue one having been formulated from an incompetent ground one and a competent ground two, renders the issue also incompetent.
In respect of Ground 3, Counsel contends that it is strange to the Judgment of the trial Court because contrary to the contention of the Appellant therein, the issue touching on Sections 97 & 98 of the Sheriffs and Civil Process Act, rather than being raised suo motu by the lower Court, was actually raised by the 1st Respondent and the Appellant joined issues on it before it was thereafter resolved by the lower Court. Counsel submits that a ground of appeal is a complaint directed at the unfavourable decision of the Court against the Appellant. Thus, any ground of appeal that is extraneous to the decision appealed against is incompetent and liable to be struck out. He relies on Sheidu V State (2014) ALL FWLR 1381 at 1391, para D; Calhorie Ltd V International Bank Plc (2014) ALL FWLR (Pt. 723) 1957 at 1982, para B (CA); Olufeagba V Abdur-Raheem (2010) ALL FWLR (Pt. 512) 1033 at 1062, paras F-H (SC); Nwankwo V Customary Court Ndiawe, Arondizuogu (2010) ALL FWLR (Pt. 531) 1516 at 1530), paras D-E (CA); Madumere V Nwosu (2010) ALL FWLR (Pt. 545) 263 at 280, paras D-E (CA); amongst others.
Counsel submits further that the Appellant formulated issue one from the defective ground 1 and a competent ground 2, while he formulated issue two from an incompetent ground 3 and a valid ground 4. He submits that an invalid ground cannot give birth to a valid issue for determination. He also argues that when an issue is a product of an unholy marriage of a competent ground and an incompetent ground, the issue itself is contaminated and thus rendered incompetent. For this, he relies on Akeredolu V Mimiko (2014) ALL FWLR (Pt. 728) 829 at 848, paras C-E; Famurewa V Onigbogi (2010) ALL FWLR (2010) (Pt. 551) 1458 at 1474, para F.
Learned Counsel for the Appellant filed a response to the 1st and 2nd Respondents preliminary objection to the hearing of the Appeal as part of his Reply Brief of argument on 09-03-2016. Therein, he distilled one lone issue for determination as follows:
Whether the preliminary objection as argued by the 1st and 2nd Respondents has merit?
In response to the arguments of the 1st and 2nd Respondents, Counsel submits that Part one of the Notice of Appeal No. CA/YL/106/15 states that the Appeal is against the decision of Hon. D.U. Okorowo, Judge, dated 17th day of September, 2015 in suit No. FHC/TAR/CS/14/15; while Part two of the Notice of Appeal states that the Appeal is against the whole decision. He contends that the statement implies the decision of Hon. D.U. Okorowo, Judge, dated the 17th day of September, 2015 in suit no. FHC/TAR/CS/14/15. He argues that the preliminary objection is a subtle invitation to the Court to descend