➥ CASE SUMMARY OF:
Chief Ufikairo Monday Efet v. Independent National Electoral Commission & Ors. (SC.207/2009, 28 January 2011)
by Branham Chima.
➥ SUBJECT MATTER
Effect of discontinuing an action;
➥ CASE FACT/HISTORY
The salient facts giving rise to the appeal as stated by the plaintiff in the affidavit in support of the originating summons are that he was nominated the Peoples Democratic Party candidate for the Ikot Abasi Eastern Obolo State Constituency for the April, 2007 General Elections in compliance with the Electoral Act 2006 and the PDP Guidelines for the primaries. His name was forwarded along with other candidates on the 21st of December, 2006 to the 1st defendant. The plaintiff stated that when he won the primaries for nomination conducted by the 2nd defendant on or about the 30/11/06 with overwhelming majority, he was issued with a Certificate of Return dated 30/11/06. However, by a letter dated 12/2/07 the 2nd defendant sought to substitute him with the 3rd defendant without giving any cogent and verifiable reason for the substitution. The plaintiff claimed that since nomination, he had been and still remained the candidate of the 2nd defendant for the House of Assembly Election in the Ikot Abasi Eastern Obolo State Constituency having been nominated and presented and not substituted in accordance with the provisions of the law.
By an originating summons dated the 24th day of April, 2007 and filed before the Federal High Court (trial court) holden in Abuja, the plaintiff applied to that court for the determination of the following questions: 1. Whether the purported letter of substitution of the plaintiff with the 3rd defendant issued by the 2nd defendant satisfies the requirement of section 34(1) and (2) of the Electoral Act, 2006. 2. If the answer to question 1 is in the negative, whether the 1st defendant properly substituted the plaintiff with the 3rd defendant having regards to the peculiar facts of this case.
The defendants, each, filed a memorandum of conditional appearance. Both 2nd and 3rd defendants filed a Notice of Preliminary Objection against the action. The plaintiff responded by filing a counter affidavit to each of the Notices of the Preliminary Objection, Meanwhile, the election which was scheduled for the 14th of April, 2007, commenced on that day in some parts of the constituency but could not be concluded. Part of the election was staggered to the 28th of April, 2007. Result was declared with the 3rd defendant emerging as the winner. In the course of the proceedings before the trial court, the plaintiff by a motion on Notice filed on the 18th of June, 2007, sought to amend the reliefs prayed in the originating summons in the light of the election held and concluded on 28th April, 2007, after the suit had been filed. The 2nd and 3rd respondents vehemently opposed the motion on the ground that the election was held after the action had been commenced and that the appellant could not claim the result of an event which occurred after the suit had been commenced, The Learned Trial Judge gave her ruling on the 17th of July, 2007 wherein she refused the amendment sought by the plaintiff. Dissatisfied, the plaintiff as appellant filed a Notice and Grounds of Appeal before the Court of Appeal, Abuja (court below). The court below allowed the appeal. It however refused to grant the prayer of the appellant inviting it to invoke its general powers under section 15 of the Court of Appeal Act to hear and determine the case on the ground that enough materials were not placed before the court to determine the actual person that won the primaries in view of the fact that primary elections were conducted in the case. The court below remitted the case to the Federal High Court for re-hearing. Dissatisfied with the decision of the court below, the appellant appealed further to this court.
Instead of pursuing the retrial, as I stated earlier, the appellant decided to discountinue the re-hearing process. Of course under the Rules of Court, and particularly the Rules of the Federal High Court, he has every right to discontinue a matter he has brought before that court.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: SUSTAINED]
I. Whether a discontinued action still pends at the lower court and can be a subject of appeal?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. ONCE A SUIT IS DISCONTINUED, IT DIED A NATURAL DEATH
[‘What I do not agree with is the contention of the learned counsel for the appellant that the already struck out action is still pending and existing validly before the retrial court. Withdrawal or discontinuance of an action connotes the termination or removal of that action from the cause list of that court. It exists no more before that court. It has slumped down, fainted and ultimately died, only waiting for resurrection where there will be one. Thus, where an action has been withdrawn or discontinued, the only remedy provided by law as in Rule 4 of Order 50 of the Federal High Court Rules, is to institute a fresh, or subsequent action to resurrect the dead, wholly or partially and whether of the same or substantially the same cause of action. The order given by the Court of Appeal is for a re-trial of the same cause of action. The re-trial commenced in earnest. The plaintiff had so many options open to him: He could have asked for a stay of proceedings in view of the pending appeal before the Supreme Court to await the final determination of the appeal by this court, or, he could withdraw it (as he rightly did) but to re-file same; or he could have discontinued his appeal before the Supreme Court in order to pursue the retrial process to its logical conclusion. The appellant preferred withdrawal/discontinuance of the re-trial action. This became fatal to his appeal at the Supreme Court.’
‘The argument put by learned counsel for the appellant that the body, spirit and soul of the present appeal arose directly from the decision of the Court of Appeal in Appeal No.CA/A/46/2008 which arose from an earlier final decision of the Federal High Court and not dependent on suit No. FHC/ABJ/CS/287/2007 by the Federal High Court, may appear lofty but faulty. If one may ask: from where did the appeal come to the Court of Appeal? Is it not from suit No.FHC/ABJ/CS/287/07 between same parties and same subject matter from the same court? Is not the one ordered by the court below to be retried by the same court, though differently constituted? Yes! It is an unintelligible argument. It cannot also alter the facts of the case presented however brilliantly put. One cannot eat one’s cake and have it again.’]
‘To consider the merit of this appeal is like beating a dead house. It serves no useful purpose. It is an exercise in futility. Courts of law dissipate energy on live issues. Courts of law for long, have left academic issues to the academia. They rather concentrate on live issues. I find the Preliminary Objections raised by the respondents in this appeal very sound and sustainable. I sustain same. I have no reason to go into the merit of the appeal as courts do not make orders in vain. See: Makinde v. Akinwale (1995) 6 NWLR Pt.399) 5; N. N. S. C. Ltd. v. Sabana (1988) 2 NWLR (Pt.74) 23. I accordingly strike out the appeal. This affects the cross appeal as well. It is also struck out by me. I make no order as to costs in the main appeal and the cross-appeal.’
➥ FURTHER DICTA:
⦿ PRELIMINARY OBJECTION WILL BE CONSIDERED FIRST
It is trite law now that where a Notice of Preliminary Objection is filed and moved before a court of law, the court is duty bound to consider the Preliminary Objection before venturing into the main or cross-appeal, as the case may be. See: AGBAREH and ANOR v. MIMRA and ORS, (2008) 1 SCNJ. 409, ONYEKWULUJE v. ANIMASHAUN and ANOR  3 SCNJ 24; ONYEMEH and ORS. v. EGBUCHULAM and ORS.  4 SCNJ 235 … The aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nib it at the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a court’s proceedings. It, in other words, forecloses hearing of the matter in order to save time, See: YARO v. AREWA CONSTRUCTION LTD. and ORS.  6 SCNJ 418. — I.T. Muhammad, JSC.
⦿ WHERE FACT NOT COUNTERED IN LAW, IT IS DEEMED ADMITTED
In the two separate counter-affidavits filed by the appellant in response to the affidavits in support of the Notices of intention to rely upon Preliminary Objection by the respondents there is no averments which countered the facts deposed to by the respondents in their respective affidavits in support as summarised above. The law is well settled that any fact which has not been categorically countered or denied by a party, that fact is deemed admitted in law by the other party. See: Nzeribe v. Dave Eng, Co. Ltd (1994) 8 NWLR (Pt.361) 124; Omoregbe v. Lawani (1980) 3-4 SC 108. See also section 75 of the Evidence Act, LFN, Cap.112, 1990. — I.T. Muhammad, JSC.
⦿ AN APPEAL IS A CONTINUATION OF THE CASE AT THE TRIAL COURT
An appeal is generally taken to be a continuation of the original case started at the first instance court. It is not a new cause of action, See: Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 171 at p.211; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250. It is always confined to the consideration of the record which was forwarded from the court below with no new testimony or issues raised in the appellate court. Focussing on the record of appeal placed before it, the appeal court “rehears” the case and may make its own evaluation of the evidence contained in the record of appeal. From that record, the appeal court may review the findings and inferences of fact and, where it considers it proper, may substitutes its own view of the facts for that of the trial court. It may also review the whole proceedings including all the interlocutory decisions given in the trial. It may reject conclusions of the trial court from facts which do not flow from the evidence or may be regarded as perverse. See: Okotie-Eboh and Ors v. Okotie-Eboh and Ors 1986) 1 SC 479 at p.507; Onowan and Anor v. Iserhein (1976) NWLR 263. What the court below did is akin to this principle of practice and procedure. — I.T. Muhammad, JSC.
Chief Ufikairo Monday Efet
Independent National Electoral Commission & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
I.T. Muhammad, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)