CASE SUMMARY OF:
Admiral Murtala Nyako v. Adamawa State House Of Assembly & Ors (2016) - SC
Admission by Counsel;
Expiration of Governors tenure;
Consequential orders by Court;
Admiral Murtala Nyako
1. Adamawa State House Of Assembly
2. Mr. Buba Kaigama (Chairman of the Seven Member Committee)
3. Inspector General Of Police
LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, J.S.C.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Uche Nwokedi.
* FOR THE RESPONDENT
- Mahmud Abubakar Magaji, SAN (for 1st respondent)
- Chief Chris Uche SAN (for 2nd respondent)
- Igbodo David Esq. (for the 3rd respondent)
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The appellant, Admiral Murtala Nyako, a retired naval officer, was elected the Governor of Adamawa State on the 5th of February 2012 to serve for a term of four years from the date he subscribed to the oath of the office. On the basis of its allegation of misconduct against the appellant, the 1st respondent following a resolution it passed, commenced the process of appellant's removal from the office of the Governor of Adamawa State he was elected to.
Aggrieved by 1st respondent's failure to follow the laid down procedure prescribed by the Constitution for the removal of a Governor, the appellant, by an originating motion filed on 13th November 2014, challenged his purported impeachment by the 1st respondent and sought for his reinstatement at the Federal High Court sitting at Yola, hereinafter referred to as the trial Court.
1st respondent not only challenged the competence of the originating motion by way of preliminary objection on the grounds of the impropriety of appellant's recourse to the fundamental rights enforcement procedure for the reliefs and its being an abuse of judicial process, it filed a counter-affidavit and a written address in opposition to the originating motion.
Appellant's originating motion and 1st respondent's preliminary objection were heard together by the trial Court. In a ruling delivered on 21st May 2015, the Court adjudged appellant's cause of action an abuse of judicial process and declined any pronouncement on the merit of same notwithstanding the availability of materials in support of the respective positions of the parties.
Dissatisfied with the trial Court's ruling, the appellant appealed to the Court of Appeal, holden at Yola, hereinafter referred to as the lower Court, by which judgment of 11th February 2016, appellant's appeal was allowed in part. The Court set aside the trial Court's ruling, invoked Section 15 of Court of Appeal Act to consider and determine the merit of appellant's originating motion and granted him reliefs 1 - 5 thereof. The 6th relief that had been abandoned by appellant's counsel in the course of arguing the appeal was, struck out.
Aggrieved by the lower Court's order striking out his 6th relief, the appellant has appealed to this Court on a notice containing three grounds.
Whether in view of the fact that the tenure of office of the Appellant had already expired and become spent as rightly graciously conceded by his Counsel, the learned Justices of the Court of Appeal were wrong in striking out the Appellant's relief No. 6?
HOLDING & RATIO DECIDENDI
The Supreme Court gave judgement in favour of the respondents.
i. Learned respondents' counsel are correct in their postulations that if indeed the appellant had withdrawn his 6th relief, through his counsel, and on the basis of the withdrawal forestalled the merits of the relief from being contested by the respondents at and determined by the lower Court, it then no longer lies in appellant's mouth, in law and equity, to seek the consideration of such an issue now. He is estopped.
ii. I affirm the powers of Isyaku SAN, appellant's counsel then, in the conduct of his client's cases, to make the "admission" he made that appellant's tenure had expired and in consequence appellant's relief that had become spent be discountenanced by the lower Court. The appellant cannot, either in law or equity, be allowed to now suggest that the lower Court is wrong for not considering a matter that ceased to be before it, having been effectively withdrawn by the claimant.
Section 180 of the CFRN 1999;
ATTORNEY GENERAL OF THE FEDERATION v. A.l.C LTD & ORS (1995) 2 NWLR (Pt. 378) 388, where Ogundare, JSC (Rtd and now late) stated: A counsel retained to conduct a cases has general authority to consent to the withdrawal of the cases and a compromise is within his apparent authority and binding on the client notwithstanding that the client may have dissented unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which a counsel is clothed when he appears to conduct a cases is to do everything which in the exercise of his discretion he may think best in the interest of his client in the conduct of the cases if within the limits of his apparent authority he enters in an agreement should he be held binding on his client. But this general authority is predicated on the existence of a counsel/client relationship.
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Firstly, an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court's decision is correct. The invitation to the higher Court to undertake the review hinges on a complaint against the decision of the lower Court. It, therefore, follows that where there is no complaint against any act or omission of the lower Court, the appellate jurisdiction of the higher Court cannot be invoked. Secondly, it is a corollary principle that an appeal properly so called can only be in relation to issues submitted to and determined by the Court against which decision the appeal lies. Accordingly, where no such issue is submitted to and determined by the lower Court, there cannot be basis for any ground of appeal against the non existing decision or an issue for determination therefrom for the appellate Court's consideration. It must, therefore, be stressed that there can hardly be a competent ground of appeal, except with leave of Court, in respect of any issue that never was in controversy between the parties for only a determination arising from such a dispute entitles the aggrieved to invoke the judicial powers vested in the appellate Court by the Constitution and the law. Put differently, only an issue pronounced upon by a lower Court is subject of a competent appeal. - Dattijo Muhammad, J.S.C. Nyako v. Adamawa House of Assembly (2016)
It is trite law that the complaint of an appellant can hardly be properly understood where there is a dichotomy between the mother/main ground and its "children" or particulars. In fact the law does not allow a party to divorce the particulars of a ground from the main ground of appeal. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the decision appealed. They are the specifications of errors or misdirection which show what the complaint against the decision is all about. And, in order to determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties. - Tanko Muhammed, J.S.C. Nyako v. Adamawa House of Assembly (2016)
However, if in the event that Mr. Nwokedi, SAN is oblivious and or should I say that he has forgotten the position of the law on the fiduciary relationship existing between a legal practitioner and his client, I should respectfully remind him that a counsel representing his client in a civil cause or matter has got enormous powers of making admissions or concessions on behalf of his client which bind the client. - Tanko Muhammed, J.S.C. Nyako v. Adamawa House of Assembly (2016)
A consequential order, as is very well known to you is that it is an order which gives effect to a judgment. It gives meaning to Judgment. It is traceable or flowing from the judgment prayed for and made consequent upon reliefs claimed by the plaintiff. It must be incidental and flow directly and naturally from reliefs claimed by the plaintiff. It is an offshoot of the main claim and it owes its existence to the main claim. - Tanko Muhammed, J.S.C. Nyako v. Adamawa House of Assembly (2016)
Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding to discover the truth. - RHODES-VIVOUR, J.S.C. Nyako v. Adamawa House of Assembly (2016)
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