DAVID SABO KENTE V. DARIUS DICKSON ISHAKU & 2 OTHERS (2017)

Background

This appeal arose from a dispute concerning the conduct of the Peoples Democratic Party’s governorship primary election in Taraba State for the 2015 general elections. David Sabo Kente, a member of the Peoples Democratic Party, had purchased the party’s nomination and expression-of-interest forms, paid the prescribed administrative charges, and was screened and cleared to contest the primary election. He alleged that the primary conducted on 11 December 2014 violated the Electoral Act 2010 (as amended), the party’s constitution, and the applicable electoral guidelines.

He commenced proceedings at the Federal High Court, Jalingo, by originating summons in suit No. FHC/TAR/CS/14/15. Among other reliefs, he sought a declaration on whether the party could adopt a procedure different from that prescribed by law and its own rules, an order nullifying the purported primary, and an injunction restraining INEC from recognising Darius Dickson Ishaku as the party’s candidate. The first and second respondents filed preliminary objections challenging the competence of the action and the jurisdiction of the Federal High Court. The trial court upheld the objections and struck out the suit in rulings delivered on 17 September 2015.

Kente attempted to appeal to the Court of Appeal, Yola Division. However, his notice of appeal stated that it challenged a ruling delivered in suit No. FHC/TAR/CS/5/15, rather than the relevant ruling in suit No. FHC/TAR/CS/14/15. The notice and reliefs therefore referred to a decision that did not exist between the parties. The Court of Appeal upheld the respondents’ objections, struck out the notice of appeal and dismissed the appeal as incompetent. Kente appealed further to the Supreme Court.

Issues

1. Whether the incorrect suit number stated in the notice of appeal rendered the notice and the resulting appeal incompetent.
2. Whether the Court of Appeal was right to strike out the notice of appeal and the appeal for lack of connection between the process filed and the decision actually delivered by the Federal High Court.
3. Whether the respondents’ preliminary objection against some grounds of appeal was proper where at least one competent ground remained capable of sustaining the appeal.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal and affirmed the decision of the Court of Appeal. The Court held that a notice of appeal is the foundation or substratum of an appeal. It must identify, with sufficient accuracy, the specific and existing decision against which the appellant complains. A notice directed at a non-existent, alien, or unrelated decision is fundamentally defective and cannot confer appellate jurisdiction.

The Court reasoned that appellate jurisdiction is statutory and constitutional, not unlimited. Under sections 240, 241 and 243 of the 1999 Constitution, the Court of Appeal may entertain an appeal only against a decision of a competent court properly brought before it. Since the notice of appeal referred to suit No. FHC/TAR/CS/5/15, while the actual decision arose from suit No. FHC/TAR/CS/14/15, there was no valid appeal before the Court of Appeal.

The Court further held that strict compliance with appellate rules is not a mere technicality. The rules governing notices of appeal are designed to identify the subject matter of the appeal, define the jurisdiction of the appellate court, and give proper notice to the opposing parties. Where non-compliance affects the foundation of the appeal, the defect is incurable and the appeal must be struck out.

Court Findings

The Supreme Court accepted the Court of Appeal’s finding that the notice of appeal had no nexus with the ruling delivered by the Federal High Court on 17 September 2015. The error was not a minor clerical irregularity that could be overlooked in the interest of justice. The appellant’s notice expressly challenged a ruling in suit No. FHC/TAR/CS/5/15 and sought orders relating to that suit, even though the record showed that the relevant proceedings and ruling were in suit No. FHC/TAR/CS/14/15.

The Court also addressed the preliminary objection directed at the omnibus ground of appeal. It explained that a preliminary objection is intended to terminate an entire proceeding at the threshold where the defect affects the competence of the whole appeal. Where valid grounds remain capable of sustaining an appeal, the appropriate procedure is a motion to strike out the incompetent grounds, not a preliminary objection seeking dismissal of the entire appeal. Nevertheless, that procedural point did not assist Kente because the foundational notice of appeal itself was incompetent.

Conclusion

The appeal was dismissed as devoid of merit. The Supreme Court affirmed the Court of Appeal’s order striking out the notice of appeal and the appeal in its entirety. Costs of N100,000 were awarded to each respondent.

Significance

The decision reinforces the central importance of a valid notice of appeal in Nigerian appellate practice. An appellant must accurately identify the judgment or ruling being challenged and comply with the applicable rules of court. A mistaken reference to another suit, particularly one involving no relevant decision between the parties, may deprive the appellate court of jurisdiction. The judgment also clarifies that adherence to procedural rules in appellate proceedings is an essential safeguard of jurisdiction and orderly litigation, rather than an improper preference for technicality. It further confirms the limited function of preliminary objections: they should be used only where the objection, if upheld, will dispose of the entire appeal.