PRINCE SHEGUN SAMUEL SAIKI v. OLORUNTOBA BAMIDELE SIMON & ORS.
(2011)LCN/4245(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of January, 2011
CA/B/EPT/152/2008 (CON)
RATIO
LEAVE TO FILE AND ARGUE ADDITIONAL GROUNDS OF APPEAL: WHETHER THE LEAVE TO FILE AND ARGUE ADDITIONAL GROUNDS OF APPEAL CAN BE STRUCK OUT BY THE APPELLATE COURT FOR INCOMPETENCE AT THE HEARING OF THE APPEAL
I am of the view that when a Court of Appeal has granted leave to file and argue additional Grounds of Appeal, at the hearing of the appeal itself, the same court has the power to strike out the same Ground or Grounds of Appeal for incompetence. As was stated by OMO JSC in the case of PETERS V. THE STATE (1992) 9 NWLR, PT. 265, Page 325 at 332 – 3352 “An order for leave to argue further Grounds of Appeal is not a decision which can only be ‘set aside’ on appeal. It is an order which is subject to a final decision of the court, whether as to its competence, regularity, invalidity or acceptability on the merits thereof.” OGWUEGBU JSC in the same case at page 331 held the view that: “Even though leave to file and argue such a Ground of Appeal was granted, it is my view that at the hearing of the appeal, the appellate court has the power to strike out such incompetent Ground of Appeal.” In the light of the foregoing pronouncements of the two learned Justices of the Supreme Court, which are binding on this court, I am of the firm view that the granting of leave to file additional Grounds of Appeal does not foreclose an attack on those grounds at the hearing of the appeal if it is conceived that such grounds are incompetent’ it was therefore open to the Respondents/cross Appellants to attack those grounds the way they did. Whether they will succeed or not is a different consideration. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
DOCTRINE OF ESTOPPEL: WHEN THE DOCTRINE OF ESTOPPEL WILL OPERATE TO ESTOP A PARTY FROM DENYING A REPRESENTATION HE MADE IN EXPRESS TERMS OR BY CONDUCT .TO ANOTHER OF THE EXISTENCE OF A STATE OF FACTS
“As was stated by the Supreme Court in IGA V. AMAKIRI (1976) 11 S.C. 1 at 12 – 13,…If a man either in express terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon… in the belief of the existence of such a state of facts… to the damage of he who so believes and so acts, the first is estopped from denying the existence of such a state of facts…” The above observation of the Supreme Court is an adumbration of the doctrine of Estoppel as provided in Section 151 of the Evidence Act. It will be unconscionable and, indeed, inequitable for any person to take benefit under such a circumstance and any person who purports to take benefit under such a situation and scenario will not be allowed to continue in such benefit by a court of equity and the principle of fairness. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
PRINCE SHEGUN SAMUEL SAIKI Appellant(s)
AND
1 OLORUNTOBA BAMIDELE SIMON
2. ACTTON CONGRESS (AC)
3. PEOPLES DEMOCMTIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. RESIDENT ELECTORAL COMMISSIONER, INEC, EDO STATE
6. ELECTORAL OFFICER (INEC), AKOKO-EDO LOCAL GOVERNMENT AREA Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment): This appeal emanates from the Judgment of the Edo State Governorship National Assembly and Legislative Houses Election Tribunal delivered on the 1 4/4/08.
The Appellant had contested the election into the Edo state House of Assembly for Akoko-Edo II constituency held on 14/4/O7 under the platform of the Peoples Democratic Party against the 1st Respondent who contested under the Action congress and other candidates. At the end of the election, the Appellant was said to have been declared winner by the 4th – 6th Respondents. Aggrieved by the said declaration, the 1st Respondent filed a petition at the lower tribunal challenging the declaration on grounds which included that the 3rd and 4th Respondents having initially cancelled the election in that constituency, had no power to later announce a result declaring the Appellant winner.
The petition went to trial at the conclusion of which the lower tribunal upheld the petition on this aforesaid ground and ordered a fresh election. Dissatisfied with the judgment the Appellant had brought this appeal on Thirteen Ground of Appeal from which he formulated four issues for determination as follows:
ISSUES FOR DETERMINATION
The Appellant, most respectfully urges- that the issues for determination distilled from the Thirteen (13) Grounds of Appeal are as follows:
1) 1ST ISSUE FOR DETERMINATION
WHETHER THE LOWER TRIBUNAL, HAD JURISDICTION TO HEAR AND DETERMINE THE PETITION FILED BY THE PETITIONER.
2) 2ND ISSUE FOR DETERMINATION (GROUNDS, 1, 2 AND 12)
WHETHER THE LOWER TRIBUNAL WAS RIGHT WHEN IT REJECTED FORMS EC8A(i); EC8B(i); ECBD(i); EC8E(i) AND APPELLANT’S CERTIFICATE OF RETURN TENDERED IN EVIDENCE BY THE APPELLANT ON THE GROUND THAT THE SAID DOCUMENTS WERE NOT FILED ALONG WITH THE IST AND 2ND RESPONDENT’S REPLY TO THE PETITION.
3) 3RD ISSUE FOR DETERMINATION (GROUNDS, 3, 4, 5 AND 6)
WHETHER THE LOWER TRIBUNAL WAS RIGHT IN NULLIFYING THE APPELLANT’S ELECTION ON THE GROUND THAT THE RESIDENT ELECTORAL COMMISSIONER HAD LEGALLY CANCELLED ELECTION RESULTS FOR THE AKOKO EDO II CONSTITUENCY.
4) 4TH ISSUE FOR DETERMINATION
(GROUNDS, 7, 8, 9 AND 10)
WHETHER THE LOWER TRIBUNAL HAD NOT FAILED TO PROPERLY EVALUATE THE ORAL, AND DOCUMENTARY EWDENCE LED BEFORE IT AND HAD THEREBY OCCASIONED A GROSS MISCARRIAGE OF JUSTICE.”
The 1st and 2nd Respondents also cross appealed
The 1st and 2nd Respondents in their brief raised Preliminary Objection to Ground 1, 2 and 12 of the Ground of Appeal and the second issue formulated by the Appellant and themselves formulated three issues for determination namely:
ISSUES FOR DETERMINATION
1) “Whether the issue of lack of jurisdiction by the lower tribunal to entertain the 1st and 2nd Respondents’ petition raised by the Appellant in his 1st issue has any merit”‘
2) “Whether the rejection of Forms EC8A(1); EC8E(1) and Appellant’s Certificate of Return sought to be tendered as Exhibits at the trial by the lower tribunal occasioned by miscarriage of Justice”.
3) “Whether the evaluation by the lower tribunal of the evidence placed before it was not proper and just in the circumstances of the Petition”.
Let me first dispose of the Preliminary Objection of the 1st and 2nd Respondents. The 1st and 2nd Respondents have argued that Grounds 1, 2 and 12 of the Grounds of Appeal do not represent or arise from the findings of the lower tribunal in its ruling of 29/1/08, arguing that the documents rejected by the lower tribunal were rejected not because they were not filed along with the Appellant’s reply to the petition, but because the Appellant did not comply with the Practice Directions prescribed for the reception of such documents. It was therefore argued that having not flowed from the decision of the lower tribunal, they were incompetent, and ought to be struck out.
In his reply to the Preliminary Objection, learned counsel for the Appellant/Cross Respondent submitted in essence that the 1st and 2nd Respondents/Cross Appellants were estopped from raising the issue of the competence of Grounds 1, 2 and 12, this court having on the 28th day of May 2010 following an application to file additional Grounds of Appeal had granted the. Appellant leave to file additional Grounds of Appeal which included Grounds 1, 2 and 12. In effect the argument of the Appellant/Cross Respondent comes to this; that since this court had granted leave for the filing of additional Grounds of Appeal which grounds included Grounds 1, 2 and 12, the issue of the competence of those Grounds was foreclosed. I am afraid I am not and will not be persuaded by such a preprostrous argument.
I am of the view that when a Court of Appeal has granted leave to file and argue additional Grounds of Appeal, at the hearing of the appeal itself, the same court has the power to strike out the same Ground or Grounds of Appeal for incompetence. As was stated by OMO JSC in the case of PETERS V. THE STATE (1992) 9 NWLR, PT. 265, Page 325 at 332 – 3352
“An order for leave to argue further Grounds of Appeal is not a decision which can only be ‘set aside’ on appeal. It is an order which is subject to a final decision of the court, whether as to its competence, regularity, invalidity or acceptability on the merits thereof.”
OGWUEGBU JSC in the same case at page 331 held the view that:
“Even though leave to file and argue such a Ground of Appeal was granted, it is my view that at the hearing of the appeal, the appellate court has the power to strike out such incompetent Ground of Appeal.”
In the light of the foregoing pronouncements of the two learned Justices of the Supreme Court, which are binding on this court, I am of the firm view that the granting of leave to file additional Grounds of Appeal does not foreclose an attack on those grounds at the hearing of the appeal if it is conceived that such grounds are incompetent’ it was therefore open to the Respondents/cross Appellants to attack those grounds the way they did. Whether they will succeed or not is a different consideration.
I have looked at the Grounds of Appeal complained against, against the background of the Judgment appealed against. I am satisfied that those grounds flow naturally, effectively and substantially from the judgment appealed against. I have also ‘looked at the arguments contained in paragraphs 4.3.1 – 4.3.9 under the 3rd issue in the Appellants brief, and I find no basis for the attack. In the premise the objection fails and is hereby overruled.
Now to the merit of the appeal and cross appeal. The Appellant/Cross Respondent identified four issues from his Grounds of Appeal which had earlier been set out elsewhere in this judgment. The 1st and 2nd Respondents/Cross Appellants identified three issues also earlier set out herein.
A fundamental issue in the entire appeals – the main and the cross appeal would appear to be issue No.3 in the Appellant/Cross Respondents brief which in summary is whether the lower tribunal was right in nullifying the Appellant’s election on the ground that the Resident Electoral Commissioner had legally cancelled the election result for Akoko-Edo II constituency and fixed a date for another election, when it later turned round to announce a result. The determination of this issue will settle all the controversies in all the appeals.
By paragraphs 34, 35, 37 and 38 of the petition’ the Petitioner who is the Appellant/Cross Respondent in these appeals pleaded that the 3rd, 4th and 5th Respondents cancelled the election of 14/4/07 for reasons stated therein and re-scheduled a new election for 25/4/07. The cancellation was pleaded to have been carried in a press release issued by the said Respondents. The 1st and 2nd Respondents denied the foregoing averments in paragraph 14 of their reply and particularly denied the issuance of any press release by which the election was cancelled. On their part, the 3rd – 5th Respondents also denied the cancellation and re-scheduling another election for 28/4/07 by paragraph 13 and 16 of their reply although it admitted in paragraph 17 that results in seventeen Polling Units in Wards 8, 9 and 10 of the Constituency of 69 Units were cancelled. There was, therefore, a strick issue of credibility as to whether or not the entire election was cancelled and re-scheduled for 28/4/07. Evidence including Exhibit 2 – A press release credited to 3rd – 4th Respondent was led by the parties on this issue.
After reviewing the evidence and painstakingly evaluating same, the lower tribunal at pages 365, 366 and 367 of the Record of Appeal made for reaching findings of fact, at page 364 in the following terms inter alia:
“In its view the tribunal finds it unsafe to act on Exhibit 3 because the Speaker was not positively identified and the time and the date of the press conference were not given in evidence. The tribunal also notes that there was no specific mention of Akoko-Edo II Constituency, of Edo State House of Assembly by the Speaker.”
However, in contrast, Exhibit 2 is more detailed and its main features are:
(1) It is in form of a paid advertisement as distinct from Newspaper coverage of an event.
(2) It is shown as having issued from Mohammed Abubakar Ahmadu, the Resident Electoral Commissioner INEC Edo State.
(3) It is headed “Declaration of Results in Edo State House of Assembly Election”
(4) It states unequivocally inter alia that the Election Results of Akoko-Edo I, Akoko-Edo II and Isako Central Constituency elections were however cancelled due to large scale use of Arms, thuggery, hijack of election materials and personnel.
(5) It listed 20 names of the candidates who were duly elected at the election of 14th of April 2007 and their constituencies but left out the elected candidates for the four constituencies namely: Akoko-Edo I and II, Isako Central and Oredo East.
(6) For emphasis and avoidance of doubt, Akoko-Edo I and II were under the caption ‘Cancelled Results’. While Isako Central and Oredo East were under the caption ‘Inconclusive Election’.
The aforementioned publication is the most authoritative proclamation made on the 20th of April 2007 by the most senior personnel of INEC in Edo State…
The Respondents did not offer any countermanding publication nor put forward any evidence, whatsoever modifying, retracting, qualifying, denying or in any way diminishing the credibility or truth of the publication…
Therefore, notwithstanding the Provisions of Section 69(c) of the Electoral Act 2006, it is the view of this tribunal that the Resident Electoral Commissioner as the most senior officer of INEC, Edo State, he is endowed with the powers and authority conferred upon him by the constitution to communicate the cancellation of the election in Exhibit 2 to the world.
That decision to cancel the election having been so communicated, and there being no retraction, or denial, remains extant and the Respondents especially 3rd – 5th Respondents must take responsibility…
From the preponderance of evidence, the Petitioners in the view of the Tribunal have discharged the burden of proving that on the 20th April 2007 Mohammed Abubakar Ahmadu, the Resident Electoral Commissioner for Edo State as he then was, cancelled amongst others the election, the subject matter of this suit and fixed the 28th of April 2007 as the date of the bye election.
In the light of the forgoing, it is our respective view that Exhibit 2 is conclusive on the issue……”
The foregoing are devastating findings of facts by the lower tribunal which can only be interfered with by this court if they are shown to be perverse but it has not been so shown by the Appellants that those findings are perverse. So this court cannot intervene. It was on the basis of those findings that the lower tribunal in its conclusion allowed the petition and ordered a fresh election.
I must observe that from the pleadings and evidence of the lower tribunal, what generated the petition in the first instance was the allegation that a result of the election in Akoko-Edo II constituency was announced after the same election had been cancelled and re-scheduled to a new date. Therefore, it was the said announced result that gave rise to the petition and not the fact that there was either no result or that the election was re-scheduled. A return made after an election had been cancelled and re-scheduled to a new date would amount to an undue return which can ground a Petition.
Looked at from another angle, by Exhibit 2, the 3rd, 4th and 5th Respondents had led the 1st and 2nd Respondents/cross Appellants to believe that the election on 14/4/07 had been cancelled for reasons given and re-scheduled for 28/4/07. It was therefore not open to 3rd, 4th and 5th Respondents to turn summersault to purport to announce the result of an election which they had given themselves out to have rescheduled. “As was stated by the Supreme Court in IGA V. AMAKIRI (1976) 11 S.C. 1 at 12 – 13,…If a man either in express terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon… in the belief of the existence of such a state of facts… to the damage of he who so believes and so acts, the first is estopped from denying the existence of such a state of facts…”
The above observation of the Supreme Court is an adumbration of the doctrine of Estoppel as provided in Section 151 of the Evidence Act. It will be unconscionable and, indeed, inequitable for any person to take benefit under such a circumstance and any person who purports to take benefit under such a situation and scenario will not be allowed to continue in such benefit by a court of equity and the principle of fairness. These, in my view, explains the fresh election ordered by the lower tribunal, and I hold that they were right in so doing.
In the circumstance, this issue ‘ is resolved against the Appellant/Cross Respondent in favour of the 1st and 2nd Respondents/Cross Appellants. The Grounds of Appeal fail and the appeal itself therefore fails. The Judgment of the lower tribunal is hereby affirmed. A fresh election is to be held for the candidates as ordered by the lower tribunal. In exercise of the power of this court under Section 16 of the court of Appeal Act following the circumstance of this case, the fresh election as ordered by the lower tribunal should now be held within one month of the date of this judgment.
The failure of this appeal for the reasons given, renders a consideration of the cross-appeals unnecessary. Therefore the cross-appeals are hereby struck out. I make no order as to costs.
OYEBISI FOLAYEMI OMOLEYE. J.C.A: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, C. E. Nwosu-Iheme, JCA, in this appeal.
I am at one with the line of reasoning and the conclusions contained in the said leading judgment. I also find that this appeal is devoid of merit and dismiss same accordingly. I equally abide by the consequential orders made in the leading judgment including, the order of costs.
ALI ABUBAKAR BABANDI GUMEL J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother NWOSU-IHEME JCA in these consolidated appeals, I fully agree with all the reasoning and conclusions. I too would dismiss the appeals and strike out the cross-appeal. I abide by the consequential order for an election to be conducted at the Akoko-Edo II the Edo State House of Assembly within one month. I also would not make any order for costs.
Appearances
A. O. Negehsan for the Appellant with him Miss N. I. Ekinwe and Miss R. O. Enaboifo.
Ricky Tarfa SAN, with him. R.I.D. Okezie K. D. UmeandiFor Appellant
AND
F. Imafu
P. O. OsemwenkhaFor Respondent
