BARRISTER FRANC FAGAH UTOO V. ALL PROGRESSIVES CONGRESS (APC) & ORS (2018)

Background

The appellant claimed that he participated in and won the All Progressives Congress primary election conducted on 7 December 2014 to select its candidate for the Makurdi/Guma Federal Constituency of Benue State. He alleged that, despite his victory and confirmation by the party’s National Assembly Primaries Elections Appeal Committee, the APC submitted the name of the second respondent to INEC as its candidate. The second respondent maintained that four aspirants contested the primary, that Buluan Peters won and that, after Peters withdrew, he was validly substituted as the APC candidate.

The appellant commenced proceedings by originating summons at the High Court of the Federal Capital Territory, Abuja, seeking declarations and orders requiring the APC and INEC to recognise him as the candidate. The trial court dismissed the suit. The Court of Appeal, Abuja Division, dismissed his appeal and affirmed the trial court’s findings. The appellant then appealed to the Supreme Court.

Issues

• Whether the grounds of appeal were grounds of law alone, permitting an appeal as of right under section 233(2) of the Constitution, or grounds of fact or mixed law and fact requiring leave under section 233(3).
• Whether leave was required because the appeal challenged concurrent findings of fact by the two lower courts.
• Whether the notice of appeal filed without leave was competent and whether the Supreme Court had jurisdiction to entertain the appeal.

Ratio Decidendi

The character of a ground of appeal is determined by its substance and particulars, not by the label assigned to it by counsel. A complaint that a lower court misunderstood the law or applied the law to facts already proved or admitted is generally a ground of law. A complaint requiring reconsideration of the evaluation of facts before applying the law is a ground of mixed law and fact.

Under section 233(2) of the 1999 Constitution, an appeal lies to the Supreme Court as of right where the grounds involve questions of law alone. Where the grounds involve facts or mixed law and facts, leave of the Court of Appeal or Supreme Court must first be obtained pursuant to section 233(3). Where the Court of Appeal has affirmed findings of fact by the trial court, Order 2 rule 32 of the Supreme Court Rules requires exceptional circumstances before leave may be granted.

The absence of the required leave renders the relevant grounds, and in this case the notice of appeal, incompetent. An incompetent originating process means that the matter was not initiated by due process of law and deprives the court of jurisdiction.

Court Findings

The Supreme Court found that the two lower courts had made concurrent findings on the disputed facts concerning the APC primary election. It examined the five grounds of appeal and their particulars rather than relying on their descriptions as “misdirection” or “error in law”. Grounds 1 and 3 challenged factual findings, while grounds 2, 4 and 5 challenged the evaluation of exhibits, affidavit evidence and the reasoning of the lower courts. They were therefore grounds of mixed law and fact.

The appellant had not sought or obtained leave before filing the notice of appeal on 6 January 2017. The preliminary objection was consequently upheld. The Court also noted, by way of obiter dictum, that the cause of action arose entirely in Benue State and that counsel ought to have considered whether the High Court of the Federal Capital Territory, Abuja had territorial jurisdiction to entertain the suit.

Conclusion

The notice of appeal was held to be incompetent. It was struck out and the appeal was dismissed. The parties were ordered to bear their respective costs.

Significance

The decision reinforces the constitutional distinction between appeals as of right and appeals requiring leave. It emphasises that appellate courts must independently classify grounds of appeal by examining their substance and particulars. It also highlights the procedural consequences of failing to obtain leave where an appeal challenges factual or mixed law and fact findings, particularly concurrent findings of the lower courts.