DR. CHRIS NWABUEZE NGIGE v. PROFESSOR DORA NKEM AKUNYILI & ORS.
(2011)LCN/4952(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of December, 2011
CA/E/EPT/39/2011 (CON)
RATIO
STARE DECISIS: CONDITION FOR THE BINDINGNESS OF AN AUTHORITY ON A SUBSEQUENT MATTER
It is settled law that authorities are binding only to the extent that the facts in the case at hand and the authority are the same. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
APPEAL: WHETHER THE REASONS FOR THE DECISION OR CONCLUSION OF A LOWER COURT IS MATERIAL TO AN APPELLATE
The settled position of law is that an appellate court should not concern itself with the reasons for the decision or conclusion of a lower court, but with the correctness of the decision or conclusion. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
ELECTION PETITION: NATURE OF AN ELECTION PETITION
It is no doubt settled law that election petitions are sui generis and should be treated in that domain or realm, See ABUBAKAR V. YAR’ADUA (2008) All FWLR (Pt.404) 1409 at 1450. This being the nature of election petitions, the courts have consistently held to the effect that election petitions are different from normal civil cases. They are conducted under the peculiar provisions of the relevant electoral law and not necessarily related to the ordinary civil rights and obligations of the parties concerned. An election petition is a proceeding that is of its own kind possessing an individualistic character, unique or like, only to itself. In other words, the proceedings have no affinity with any action known to common law. See BAMIGBOYE V. SARAKI [2009] All FWLR (Pt.484) 1573 at 1595. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
RESPONDENT TO AN ELECTION PETITION: WHETHER IT IS ONLY THE PERSON THAT WAS ELECTED OR RETURNED IN AN ELECTION CONDUCTED PURSUANT TO THE PROVISIONS OF THE ELECTORAL ACT THAT CAN BE MADE AS A RESPONDENT TO AN ELECTION PETITION; WHETHER INEC OFFICIALS NEED TO BE JOINED AS RESPONDENTS TO THE ELECTION PETITION WHERE INEC IS JOINED AS A RESPONDENT
The Electoral Act in Section 133(1) not only provides for the means or process of challenging or questioning an election and return made in any election conducted pursuant to the provisions of the Act, but also the complaints that are permissible in challenging or questioning such election. An election conducted under the Act can only by questioned by “an election petition” and the complaints permissible therein, are complaints of “undue election” or that of “undue return” in relation to the person elected or returned in the questioned election and who must be joined as a respondent in the petition. It is my considered view that the provision of Section 133(1) of the Electoral Act (supra), cannot be construed as stipulating that only the person elected or returned in an election conducted pursuant to the provisions of the Electoral Act, is to be the only respondent in an election petition. In other words, it cannot be argued that an election petition is to have only the person elected or returned as the sole respondent by virtue of the provision of Section 133(1) (supra). This is because the operative words in the provision of Section 133(1) in this regard are ”Joined as a respondent” and not ‘Joined as the respondent”. Section 137 of the Act while stipulating that the person whose election is complained of shall be referred to as “the respondent” goes further to provide for the joinder in the Petition of other INEC officials against who the petitioner complains of their conduct in the election as respondents. The provisions of Section 137 of the Electoral Act are however clear that once INEC is joined as a respondent in a Petition, there is no need to join any of its officials the petitioner complains of the conduct in the election as INEC having been made a respondent therein, shall be deemed to be defending the Petition on its own behalf and on behalf of its officers, no matter the nature of the complaints against such officials. It is my considered view that the provisions of Sections 133(1) and 137 of the Electoral Act (supra) clearly show that an election petition is properly constituted, once the process has as parties, a candidate in an election and/or the political party of the candidate that participated in the election on the one hand, challenging the return of the person returned as the winner of the questioned election as well as body (i.e. INEC) that conducted the questioned election, on the other hand. It is obvious from the face of the instant Petition that the Respondents are respectively, a candidate in the questioned election and a political party that participated in the questioned election on the one hand, while the Appellant is the person returned in the election and the 3rd Respondent is the body that conducted the questioned election on the other hand. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
MIS-JOINDER/NON-JOINDER: WHETHER A PROPERLY CONSTITUTED ACTION CAN BE DEFEATED SOLELY ON THE GROUND OF MISJOINDER AND/OR NON-JOINDER
The law is settled that a properly constituted action cannot be defeated by misjoinder and/or non-joinder. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
ELECTION PETITION: WHETHER THE POLITICAL PARTY OF THE RESPONDENT TO AN ELECTION PETITION OUGHT TO BE JOINED AS A CO-RESPONDENT
The Appellant relying on Section 221 of the Constitution (supra) and the cases of Amaechi and Odedo (both supra) submitted to the effect that the votes cast in an election belong to the political party; hence the political party ought to be a co-respondent with the person returned in a situation where allegations of deprivation of votes and over-voting are made with a prayer for cancellation of the votes. Section 221 of the Constitution reads: – “No association, other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”(Underlining supplied by me). It is my considered view that the Appellant in relying on the provision quoted above, has conveniently lost sight of the underlined words which show that a political party canvasses for votes on behalf of the candidate. In other words that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that it is against the backdrop of this, that the Electoral Act (supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election and further provides for the means of challenging the return of the candidate (and not his political party). It would equally appear that it is against the backdrop of the fact that political parties canvass for votes on behalf of their respective candidates that while Forms EC8A – ECSE referred to by the Appellant bear the names of political parties, it is still the candidate of the political party (and not the political party itself) that has the highest number of votes against its name that is declared as the winner of an election conducted under the Electoral Act (supra). The Respondents have submitted that the case of Amaechi (supra) relied upon by the Appellant was based on its peculiar facts and that it did not decide that a political party is a necessary party in an election petition. The Respondents are in my considered view very correct in their summation concerning the case of Amaechi (supra). It should be understood that the case was not an election petition matter. The same applies to Odedo’s case (supra). The decision in the Amaechi case (supra) was to ensure that justice was done to the candidate of the political party for an election but who the political party wrongly disallowed from contesting the election as its candidate in the election, and which was won by the wrong candidate which the political party fielded or sponsored for the election. The Electoral Act and the various Forms referred to by the Appellant in my considered view at the worst have only succeeded in making both a candidate returned at election and the votes credited to the party in the Forms, to be interchangeable. The submissions of the Appellant to the effect that ACN ought to have been joined as a co-respondent to him, premised on the purported ownership by the ACN of the votes cast for him and which are being sought to be cancelled, in the circumstances, cannot properly warrant the joinder of the said ACN. Consequently, the non-joinder of ACN in the Petition despite the reliefs sought therein, cannot and indeed is not fatal to the Petition. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
JOINDER OF PARTIES: WHETHER IT IS NECESSARY TO JOIN INEC OFFICERS AGAINST WHOM ALLEGATIONS OF NEGLIGENCE AND CRIMINAL CONDUCT HAD BEEN MADE ONCE INEC IS A PARTY IN THE PETITION
In my considered view, all that needs to be done in resolving the issue at hand, is an interpretation of Section 137(3) of the Electoral Act (supra) and this will not be a difficult task at all given the fact that this very Court has given an exposition of the said Section in many cases, too numerous to set out in this judgment. One of such cases is the decision (unreported) delivered on 19/8/2011, by this very Division of this Court in APPEAL NO.CA/E/EPT/02/2011 – DR. OKECHUKWU UDEH & ANOR. V. BEN NWANKWO & ORS, and which decision the Respondents have cited in their Brief of Argument. The decision of this Court under reference, has clearly settled the issue at stake. Therein, this Court decided to the effect amongst others, that pursuant to the provisions of Section 137 of the Electoral Act and those of Paragraph 51(1) of the 1st Schedule to the said Act, the joinder of INEC officials in a Petition, no matter the nature of complaint made against them, is unnecessary once INEC is a party in the Petition as INEC is deemed to be defending the Petition for itself and on behalf of its officials against whom allegations have been made. It was also made clear in the decision that the issue of fair hearing as it pertains to INEC officials against whom allegations are made in the Petition but not joined as parties, does not arise for consideration at the stage when objection is taken to the competence of the Petition. The Court further opined that “the vexed issue of fair hearing is a deep river waiting to be crossed when allegations of criminal conduct are made out against INEC Officers who are not Respondents in a Petition.” PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
REPLY TO THE RESPONDENT’ S PETITIONER’S REPLY: WHETHER THE LEAVE OF THE COURT IS PART OF THE REQUIREMENTS EXPECTED OF A PETITIONER TO FILE A RESPONSE TO A RESPONDENT’S REPLY
It is clear from the provisions of Paragraph 12 of the First Schedule to the Electoral Act that it is by way of filing a reply that a respondent can respond to the case made against him in a petition by a petitioner. The provisions of the Paragraph in question further provide for the manner/form in which a reply should be presented and also provide that a reply should be accompanied by copies of documentary evidence, list of witnesses and their written statements on oath. In other words Paragraph 12 of the First Schedule to the Electoral Act (supra) provides for what a reply in an election petition is and what should accompany it. By Paragraph 16 of the First Schedule to the Electoral Act (supra) a petitioner is entitled within the time frame stated therein, to file a Reply to a respondent’s reply where the said respondent’s reply raises new issues of facts in defence of his case which the Petition has not dealt with. It is my considered view that “Reply” whether it is being filed by the respondent or by the petitioner in the circumstances provided for under Paragraph 16 (supra), is for the purpose of enabling the party filing the same respond to the case of his opponent. Paragraph 12 as earlier said has not only provided for the form of a reply, but also for what should accompany the same. Some of these being copies of documentary evidence, list of witnesses and their written statements on oath. Accordingly, against the backdrop that a “reply” remains a “reply” whether it is being filed by a respondent in response to a Petition or in response to a respondent’s reply, it is my considered view that it is most appropriate, nay, imperative for a petitioner filing a reply to the reply of a respondent to accompany the same with copies of documentary evidence, list of witnesses and their written statements on oath at the time of filing, if he wants the process he has filed to qualify as a reply, As there is clearly no requirement for a respondent filing a reply under Paragraph 12 of the First Schedule to first procure the leave of the Tribunal before he accompanies the same with witnesses statements on oath, there is likewise no such requirement for a petitioner filing a reply pursuant to Paragraph 16 of the First Schedule to do this. See also Paragraph 2 of the Election Tribunal & Court Practice Directions 2011 which provides that Paragraph 4(5) of the First Schedule to the Electoral Act 2010 (as amended) shall apply mutatis mutandis to a petitioner’s reply. The aforementioned Paragraph 4(5) of the First Schedule sets out what should accompany an election petition and they include written statements on oath of witnesses. PER AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJUMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
DR. CHRIS NWABUEZE NGIGE Appellant(s)
AND
1. PROFESSOR DORA NKEM AKUNYILI
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
AYOBODE OLUJUMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The above stated appeals were lodged by the 1st Respondent in Petition No.EPT/AN/NAE/SE/26/2011 – Dr. Chris Ngige, against the Rulings delivered by the National and State Houses of Assembly Election Tribunal, Awka Anambra State (hereafter simply referred to as “the Tribunal”), on 4/10/2011 and 7/10/2011 respectively, in the aforementioned Petition No.E PT/AN/NAE/SE/26/2011 .
The three appeals were entertained on 30/11/2011 and these judgments are in relation to each of the said appeals.
APPEAL NO.CA/E/EPT/39/2011:
The 1st and 2nd Respondents as Petitioners instituted Petition No.EPT/AN/NAE/SE/26/2011 (hereafter simply referred to as “the Petition”) on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent (hereafter to be simply referred to as “the Appellant”) as the winner of the election to the Senate of the Federal Republic of Nigeria for Anambra Central Senatorial District held on 9/4/2011 with a re-run into some Wards and Polling Units held on 26/4/2011. The 1st Respondent contested the questioned election on the platform of the 2nd Respondent; while the Appellant contested the said election on the platform of the Action Congress of Nigeria. The grounds of the Petition (in which the 1st and 2nd Respondents are the Petitioners) as set out in paragraph 7 thereof are: –
“(a) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(b) That the election was invalid by reason of non-compliance with the provisions of the Electoral Act and the manual made thereunder.”
The prayers in the Petition as set out therein read thus: –
(i) That it be declared that upon a proper computation of the lawful votes cast at the election the subject matter of this Petition, the return of the 1st Respondent as the winner of the Election to the Senate held on the 9th April 2011 with a rerun election in some Wards and Polling Units on 26th April 2011 for Anambra Central Senatorial District is null and void in that the 1st Respondent was not elected by majority of lawful votes cast at the election.
(ii) That the return of the 1st Respondent as the winner of the said election be set aside.
(iii) That it be declared that the Petitioners scored the highest number of valid votes cast at the questioned election and that the 1st Petitioner ought to have been returned as the winner of the election.
(iv) That the 1st Petitioner be returned as having been duly elected by majority of lawful votes cast at the Election to the Senate held on the 9tt April 2011 with a rerun election in some Wards and Polling Units on 26th April 2011 for Anambra Central Senatorial District.”
The 1st and 2nd Respondents as Petitioners pray in the ALTERNATIVE that: –
“2.
(A) The questioned election was invalid by reason of non compliance with the provision of the Electoral Act and the Manual for Election Officials 2011 made pursuant to Section 153 of the Electoral Act in that –
(i) The number of registered voters in the two Polling Units in the Constituency where the election did not hold to wit; Orubuchi Kindergarten II Polling Unit, Code No.004, Nkpor Ward II, Dunukofia Local Government Area and Central Primary School 1 Polling Unit, Code No. 003, Abba Ward in Njikoka Local Government Area is in excess of the margin of win by votes of the 1st Respondent and a return could not in the circumstances have been made.
(ii) The total number of registered voters in Polling Units where the election is void by reason of OVER-VOTING as set out in paragraphs C (I), (II), (III), (IV), (V), (VI), (VII), (VIII), (IX), (X), (XI), (XII), (XIII), F(III), (IV) and H(a), (b), (c), (d) and (e) of the petition is in excess of the margin of win of the 1st Respondent and a rerun cannot be made in the circumstances.
(iii) The total number of registered voters where the election was marred by various malpractices which substantially affected the result of the election as set out in paragraph E of this Petition is in excess of the margin of win by votes of the 1st Respondent and a return cannot be made in the circumstances.
(B) By reason of paragraph 2A(I)(II) and (III) above, the Petitioners pray that the questioned election be nullified and a re-run ordered.”
The Respondents in the Petition duly filed their respective Replies to the Petition and the Petitioners equally filed Petitioners’ Replies to the respective Replies filed by the Respondents. The Petitioners in the Petition (i.e. 1st and 2nd Respondents in the appeal) after the close of pleadings duly activated the pre-hearing stage of the Petition by applying for the issuance of pre-hearing notice. All the above were done while the Petition was before the Tribunal as constituted by Hon. Justices Bwala, Cocodia and Adeigbe. The Tribunal as constituted in the manner hereinbefore stated was later disbanded but the Petition never proceeded to hearing before the Tribunal before its disbandment.
The Tribunal was after its disbandment, re-constituted with Hon. Justices P. O. Onajite-Kuejubola; Udu Eze; and Y. Mukthar as Chairman and members respectively. Prior to the reconstitution of the Tribunal, the Appellant had on 8/9/2011 filed a motion on notice of the same date in the Petition. The prayers of the Appellant in the motion read thus: –
“1. AN ORDER granting leave to the 1st Respondent/Applicant to apply by way of motion outside the prehearing session for the reliefs contained in the prayers herein below set out.
2. AN ORDER DECLARING that the Tribunal has no more jurisdiction to continue with the hearing of the petition in PETITION NO; EPT/AN/NAE/26/2011 Prof. Dora Nkem Akunyili & Anor Vs. Dr. Chris Nwabueze Ngige & Anor, the said petition having been abandoned.
2. (Sic) AN ORDER SETTING ASIDE the Notice of Pre-hearing Sessions (Form TF 007) issued by the Secretary of this Tribunal on the 27th of July 2011, the Pre-hearing Information Sheets (Form TF 008) filed by the parties in this petition for lack of jurisdiction.
3. AN ORDER DECLARING the petition in these proceedings as abandoned and dismissing same; the “pre-hearing sessions’ having been initiated in breach of the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended).
4. AND FOR SUCH ORDER or further Orders as the Honourable Tribunal may deem fit to make in the circumstances.,
The grounds for the application as set out therein are: –
“(i) Pleadings in this petition were concluded on the 14th and 21st day of June, 2011 respectively when the Petitioners filed their Replies to the respective Replies of the 2nd and 1st Respondents;
(ii) The Petitioners on the 24th day of June 2011 by a letter of same date applied to the Secretary of the Tribunal for the issuance of Forms TF007 and TF008 respectively which letter purport to kick start the pre-hearing session in this suit;
(iii) Upon a proper interpretation of paragraph 18(1) of the 1st Schedule, the Petitioners ought to have applied for the issuance of the said Form TF 008 by a Notice of Motion pursuant to paragraph 18(1) of the 1st Schedule, supra;
(iv) The said letter for issuance of pre-hearing forms dated 24th June 2011 was made without jurisdiction and therefore void;
(v) The proceedings of the Tribunal conducted on the 25th and 29th of July 2011, and other subsequent dates in purported compliance with the provisions of Paragraph 18 of the 1st Schedule, supra are nullity and ought to be set aside;
(vi) Since the proceedings are null and void, the petition herein is pro tanto abandoned and ought to be dismissed.”
(See pages 705 -719 of the record for the motion, supporting affidavit and written address of the Appellant).
The 1st and 2nd Respondents in this appeal (hereafter simply referred to as “Respondents”) filed a counter affidavit in response to the supporting affidavit of the Appellant’s motion and a written address in opposition to the said motion. (See pages 903 – 947 of the record). The Appellant filed a further affidavit in response to the counter affidavit of the Respondents as well as a written reply on point of law in respect of his application. (See pages 948 – 957 of the record). The 2nd Respondent in the Petition (now 3rd Respondent in this appeal) not being in agreement with the issues canvassed by the Respondents filed what it termed “Reply on Points of Law by the 2nd Respondent”. (See pages 958 -971of the record).
Going by the record of appeal, it was on 1 6/9/2011 that the Petition first came up before the Tribunal as newly constituted by Hon. Justices Onajite-Kuejubola; Udu-Eze; and Mukhtar. (See page 1113 of the supplementary record). On that day, a motion dated 3/8/2011 and filed on the same date by the Appellant was struck out by the Tribunal upon the application in that regard by learned senior counsel for the said Appellant. The Tribunal on the same day entertained another motion dated 27/8/2011 and filed on 5/9/2011. The Tribunal on the said 16/9/2011 adjourned its ruling on the motion it entertained to 27/9/2011 and also adjourned the Petition to the same date for continuation of pre-hearing. (Underlining supplied by me). It was on 27/9/2011 that the Tribunal entertained the Appellant’s motion dated 8/9/2011 and filed on the same date. (See page 1115 of the supplementary record). It was at the hearing of the said motion on 27/9/2011 that learned senior counsel for the Appellant sought for the leave of the Tribunal and indeed procured the said leave, to add an additional ground 7 to the grounds of the application being entertained by the Tribunal. The additional ground 7 is that “the Petitioners did not filed (sic) and served (sic) Form TF008 as required by paragraph 18(2) of the 1st schedule to the electoral act”. (See page 1116 of the supplementary record). The Tribunal in the ruling it delivered in respect of the Appellant’s motion on 4/10/2011 dismissed the said motion.
The Appellant being dissatisfied with dismissal of his motion by the Tribunal lodged an appeal against the Ruling of the Tribunal in that regard. Appellant’s Notice of Appeal dated 20/10/2011 was filed on 21/10/2011. The Notice of Appeal contains three grounds of appeal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. 1st Respondent/Appellant’s Brief of Argument is dated 4/11/2011 and filed on the same date. The 1st Respondent/Appellant also filed a Reply Brief dated 16/11/2011 on the same date. Save that the name of Kola Awodein; SAN was not included in the Appellant’s Reply Brief, the two Briefs were settled by Chief G.N. Uwechue, SAN; Kola Awodein, SAN; Rickey Tarfa, SAN; Chief Niyi Akintola, SAN; Chief Emeka Ngige, SAN; Hon. Bona Oraekwe; Ngozi Udodi (Ms); and P.E. Okoye, Esq. The Brief of Argument of the 1st and 2nd Respondents dated 14/11/2011 and filed on the same date was settled by O. A. Obianwu, Esq. (SAN); H. C. Onwuegbuke, Esq.; G. B. Obi, Esq.; T. U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The 3rd Respondent in the appeal did not file any Brief of Argument. The appeal was entertained on 30/11/2011, At the hearing of the appeal, Emeka Ngige (SAN) learned senior counsel for the Appellant stated that he was abandoning issue 1 of the three issues formulated for the determination of the appeal in the Appellant’s Brief of Argument, in the light of the decision of the Supreme Court in SC.350/2011 – Abubakar v. Nasamu delivered on 9/11/2011. Thereafter he adopted and relied on the Briefs of Argument of the Appellant in urging the Court to resolve the remaining two issues in favour of the Appellant and to allow the appeal. T. U. Oguji learned lead counsel for the Respondents on his part adopted and relied on the Brief of the said Respondents as identified hereinbefore, in urging that the appeal be dismissed. Arthur Obi Okafor (SAN) learned lead senior counsel for the 3rd Respondent in the appeal, simply urged the Court to do justice in the appeal as the said 3rd Respondent did not file any Brief of Argument in the appeal.
The two live Issues arising for determination in the appeal consequent to the abandonment of the first of the three issues formulated in the Appellant’s Brief of Argument are: –
1. Whether the lower Tribunal was right in holding that in de novo proceedings all the orders made by the previous panel remain valid and subsisting despite being aware of binding decisions of superior Courts to the contrary cited to it. (Distilled from Ground 2)
2. Whether the learned judges of the lower Tribunal were right in refusing to make a pronouncement on the issue of whether the Petitioners filed the mandatory Form TF 008 and if not, whether the failure to make that pronouncement had occasioned a miscarriage of justice. (Distilled from Ground 3)
The Respondents formulated a lone issue as arising for determination in the appeal. The issue reads: –
Whether the tribunal was right to have refused the application to dismiss the petition as an abandoned petition.
The appeal will be determined upon the lone issue formulated by the Respondents. This is not only because the said issue sufficiently subsumes the two issues formulated by the Appellant but also in the light of the process which the Tribunal entertained and ruled upon. The Appellant in the main submitted that the Tribunal was in serious error in respect of the pronouncement it made on “de novo” trial, and that the Tribunal fell into the error despite the fact that its attention was drawn to the decision (unreported) of this very Court delivered on 13/7/2010 in Appeal No. CA/E/EPT/4B/2011 – Dr. Chris Ngige & Action Congress v. Peter Obi & Ors. and which decision applied the decision of the Supreme Court in Babatunde v. PAS & TA Ltd [2007] 13 NWLR (Pt. 1050) 113. The Tribunal was accused of failing to follow the decision of higher courts as it is enjoined in law to do, and the case of Beakay Nig. Ltd v. Cadbury Plc (2006) 6 NWLR (Pt. 976) 331 at 338 was cited in aid. The Appellant urged that the issue relating to “de novo” trial be resolved in his favour.
Dwelling on the issue of “de novo” trial, the Respondents in the main submitted that the issue of “de novo” trial did not arise in the circumstances of the Petition before the Tribunal and that the case of Dr. Chris Ngige & Action Congress v. Peter Obi & Ors. cited by the Appellant was inapplicable. The cases of Adighue v. Nwaogu (2009) 2 NWLR (Pt. 1125)231 at252-253; and Soyinka v. Oni (2011) 13 NWLR (Pt. 1264) 294 at 310 were cited by the Respondents as being applicable in the circumstances of the Petition. In his Reply Brief, the Appellant said to the effect that the Respondents who have now argued that the issue of “de novo” trial did not arise in the circumstances of the Petition, were beneficiaries of a “de novo” hearing when on 16/9/2011 they re-presented and re-argued an application they had earlier brought before the disbanded panel of the Tribunal. The Appellant further stated that the case of Soyinka v. Oni (supra) cited by the Respondents apart from having been decided by a three man panel was inapplicable upon its peculiar facts.
Dwelling on the issue of failure of the Tribunal to make a pronouncement in respect of his additional ground 7, the Appellant reproduced portions of the ruling appealed against and submitted to the effect that all the Tribunal did therein was to have made passing remarks on the matter. The Appellant submitted that the Tribunal was in error in not making a definitive pronouncement on the vexed issue as to whether or not the Respondents filed Form TF 008. The Appellant stated the position of the law to be that a court was duty bound to make pronouncement on points validly presented by parties and cited in aid the cases of Brawal Shipping (Nig.) Ltd v. F. I. Onwadike Co. Ltd (2001) 14 NWLR (Pt. 732) 172; and lrolo v. Uka (2002) 14 NWLR (Pt.786) 195 at 225.
Dwelling on the issue as to whether or not the Tribunal made a pronouncement in respect of the Appellant’s additional ground 7, the Respondents submitted to the effect that the Tribunal did and referred to relevant portions of the ruling of the Tribunal in this regard. In his Reply Brief the Appellant submitted to the effect that the stance of the Respondents that the Tribunal made a definitive pronouncement in respect of his additional ground 7 in the portions of the ruling that they referred to in their Brief of Argument, was not tenable.
It is glaring from a perusal of the ruling of the Tribunal appealed against, that the Tribunal made pronouncement at page 1151 of the record in respect of what “a trial de novo” means, despite having first stated at page 1150 of the record thus : –
“…We wish to state categorically that we will not dwell or venture into an academic exercise as to whether a motion or letter in (sic) the appropriate mode of kick starting the pre-hearing conference, and what a trial de novo means … In the same vein we delivered a ruling in respect of the application filed in petition No. EPT/AN/NAE/HR/06/2011 supra on 29th September, 2011. We are bound by that ruling therefore, we found it very difficult to accept the argument that a letter is not one of the proper ways by which application could be made for commencement of pre-hearing session especially in the light of the decision of the Court of Appeal in Suit No. CA/J/EPT/HR/127/2011 Aliyu Ibrahim Gebi vs Alhaji Garbi Dahiru unreported and other that followed it. Therefore all arguments respecting that a letter is not one of the proper modes by which an application can be made for commencement of prehearing are hereby overruled. On this issue we have uphold (sic) all the arguments advanced by the petitioners and consequently this issue is resolved in against the respondents.”
It was after the Tribunal had stated and found as re-produced above, that it proceeded to further state at page 1151 thus: –
“On the issue of de novo trial, we have earlier on, on 29/9/2011 held that it is simply starting the trial a fresh which does not invalidate orders validly made by the previous panel. It should be borne in mind that we are not, and we do not have the capacity to sit over any lawful order made by the previous panel.
In law this panel and the previous are one. Therefore, all orders made by the previous panel validly made are valid and subsisting including the order issuing form TF 008 to all parties and setting the petition into pre-trial conference. Again we found no difficulty in upholding the arguments advanced by the petitioners on this issue. This issue is also resolved against the respondents. Having hold (sic) that the order (sic) made by the previous panel are valid we are of the view that the issue of waiver heavily canvassed by counsel is overtaken by events. The additional ground added by the 1st respondent. (sic) While arguing the application is also affected.”
The Appellant has forcefully argued that the pronouncement of the Tribunal in respect of ”de novo” trial is wrong and that the Tribunal made the wrong pronouncement in the face of binding authorities of superior courts cited to it on the issue of “de novo” trial, particularly the unreported decision of this very Court in Appeal No.CA/E/EPT/4B/2010 – Dr. Chris Nwabueze Ngige & Anor. V. Peter Obi delivered on 13/17/2011.
I have no doubt whatsoever that having regard to the settled authorities on the meaning of “de novo trial” or “de novo hearing” what the Tribunal stated in respect of “de novo trial” in its ruling appealed against, is manifestly wrong.
It would however appear that the Respondents in their Brief of Argument, grasped the circumstances of the instant Petition better than the Appellant when they said at paragraph 4.5 thereof thus: –
“The Appellants next complaint, is that the tribunal erred when it held that it was bound by previous orders made by the previous panel of the same Tribunal. According to the Appellant orders made in previous proceedings are not valid and subsisting in a de-novo trial. The Appellant loses sight of the fact that a trial de-novo, presupposes that there was in fact a trial which is obliterated by the judgment of the Appellate court, which is not the case in the instant matter. It is in this vein that we submit with respect that the subsequent panel of the Tribunal was right when it held that it was bound by the decisions of the first panel on the earlier application of the appellant and that it ought not to revisit the earlier decision…”
There is no doubt that the instant Petition was never transferred before another panel of the Tribunal for hearing therein to commence de-novo pursuant to any court order. What happened in the Petition was that the panel hitherto entertaining the Petition was changed or reconstituted at a point in time. This is not the same thing as an order of an appellate court directing or sending a case back for “de-novo trial’. The matter before the Tribunal is an election petition in respect of which time is of the very essence. Indeed, the 1999 Constitution (as amended) in Section 285(6) provides that “an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”. The concept of “de-novo trial” in my considered view cannot be appropriately imported Into the instant Petition having regard to its peculiar circumstances against the backdrop of the provision of Section 285(6) of the Constitution (supra). To do so would constitute an infringement of the time frame the Respondents have for the determination of their Petition.
The situation in the instant Petition upon the reconstitution of the panel that was hitherto entertaining the same, in my considered view was clearly not one of “de-novo trial” but one of the panel as presently constituted taking over from where the disbanded panel stopped, and which situation clearly implied the subsistence of proceedings before the disbanded panel, and orders previously made by that panel of the Tribunal. It is settled law that authorities are binding only to the extent that the facts in the case at hand and the authority are the same. The Tribunal clearly made a wrong pronouncement in respect of what trial “de-novo” is, in the ruling appealed against; but at the same time the Tribunal in my considered view was eminently right to have considered itself bound by previous proceedings and orders made in the Petition before it took it over. The settled position of law is that an appellate court should not concern itself with the reasons for the decision or conclusion of a lower court, but with the correctness of the decision or conclusion. Against the backdrop of the position of the law as stated, the wrong pronouncement of the Tribunal in respect of what “de novo trial” is, therefore cannot and has in no way vitiated its decision in respect of the Appellant’s motion.
The Appellant has argued that the Tribunal did not make any pronouncement in respect of the issue that the Respondents did not file Form TF 008. This issue was raised by the Appellant’s additional ground 7 which states “that the Petitioners did not filed (sic) and served (sic) Form TF008 as required by paragraph 18(2) of the 1st schedule to the electoral act.” No submission in relation to this ground (i.e. additional ground 7) was made in any of the written addresses of the parties that filed the same in respect of the Appellant’s motion. This no doubt was due to the fact that the said additional ground was not before the Tribunal at all material times parties were filing their written addresses. Parties however made oral submissions in respect of the additional ground 7 at the hearing of the Appellant’s motion. In this regard, learned senior counsel for the Appellant is recorded as having said: –
“…The additional ground is that the petition (sic) did not filed (sic) form TF008. Paragraph 18(2) provides as stated. The said form was neither filed nor served, which supports the other ground, that the tribunal has no jurisdiction to continue with this petition the tribunal is empowered by paragraph 18(11) to dismiss a petition where a petitioner is unprepared or fails to participate actively in good faith, (sic) the hearing of the petition.
If paragraph 18(11) is read together with paragraph 18(4) the petition will be dismissed.” (See page 1117 of the record)
Learned senior counsel for the 2nd Respondent (i.e. 3rd Respondent in the instant appeal) on his part, stated thus at page 1118 of the record: –
“In respect of the oral application adding the 7th ground. The court is bound by record of the court, it is bound to see its record. No Form TF008 filed (sic) and completed by the petitioner was filed. The record of court does not lie, that alone suffices for the buria (sic) of the petition.”
Under “Reply by Petition:” the Tribunal recorded thus at page 1121 of the record: –
“On the 7th ground that contention is not available to the respondent the duty of showing that a petitioner did not file or fill Form TF008 is on the person making the allegation that onus to discharge by merely making the allegation that point is belated in view of what transpired before the old panel matter already fixed for hearing that 7th grounds, (sic) is not supported by affidavit evidence to substantiate it submission of counsel cannot constitute evidence. The respondents (sic) to have raised the point in the affidavit and urge court to see its record. I urge the court to resolve issue in the application against the 2 respondent (sic).”
Under “Reply by 2nd Respondent” the Tribunal recorded at page 1122 of the record thus: –
“All submissions on waiver, both in the nature of form substantive, or procedural or time of filing, objection, all of them within trial de novo have been overtaking (sic) by event. I command (sic) the court to court ruling this morning. This petition should be dismissed.”
Under “Point of law by 1st Respondent:” the Tribunal at page 1122 of the record, recorded thus: –
“The court record is there to see if the petitioners filed and served Form TF008. The petitioner (sic) cannot be heard to say that the issue is belated.”
The Tribunal in its ruling stated thus at pages 1151 – 1152: –
“In law this panel and the previous are one. Therefore, all orders made by the previous panel validly made are valid and subsisting including the orders issuing form TF008 to all parties and setting the petition into pre-trial conference. Again we found (sic) no difficulty in upholding the arguments of the petitioners on this issue. This issue is also resolved against the respondents.
Having hold (sic) that the order made by the previous panel are valid we are of the view that the issue of wavier heavily canvassed by counsel is overtaken by events. The additional ground added by the 1st Respondent while arguing his application is also affected.
Consequently, the order declaring that the tribunal declares that it has no more jurisdiction to continue with the hearing of petition in petition No.EPT/AN/NAE/SE/26/2011 Professor Dora Nkem Akunyili & Another Vs. Dr. Chris Nwabueze Ngige & Another said petition having been abandoned cannot be made. Also an order setting aside the notice of pre-hearing sessions (form TF007) issued by the secretary of this Tribunal on 27th of July, 2011, the pre-hearing information sheet (Form TF008) filed by the parties in this petition cannot be granted.”
It is my considered view that the Tribunal in the ruling appealed against clearly averted its mind to the additional ground 7 of the Appellant’s motion and clearly made a pronouncement thereon. In this regard, the Tribunal having decided to the effect that trial “de novo’ did not imply the wiping off of every act taken or order legitimately made in the Petition by the panel which entertained the instant Petition before it, further stated in clear terms that all the orders made by the previous panel are valid and subsisting including the orders issuing form TF008 to all parties and setting the petition into pre-trial conference. Again, in the same ruling, the Tribunal further held to the effect that in view of its holding that the orders made by the previous panel are valid, it was of the view that the issue of wavier heavily canvassed by counsel is overtaken by events. Furthermore that the additional ground 7 brought in by the Appellant while arguing his application is also affected. It is my considered view that the Tribunal clearly took the position that the additional ground 7 complaining of the Respondents not filing or serving Form TF 008 was no longer an issue for resolution in the Petition, given the previous valid orders made by the panel that entertained the Petition before it. This is clearly a pronouncement. It should be appreciated that in the submissions of some of the parties, the Tribunal was not only invited to look into its record in relation to the additional ground 7, but the Tribunal in the ruling appealed against, glaringly showed itself as having looked at its record which was apparently before it. The record of the Tribunal at pages 1105 – 1107 as well as pages 1107A – 1107F not only showed glaringly that pre-trial commenced in the Petition on 25/7/2011 but also all that had transpired in the Petition before the disbanded panel. The Tribunal in my considered view by taking the stance earlier stated above, in respect of the additional ground 7 clearly made a pronouncement in respect of the same.
The Tribunal having clearly saved all the proceedings and orders of the previous panel in the ruling appealed against; definitely could not in the same ruling, had found the Respondents not to have filed and served Form TF 008. This is particularly so, as everything concerning the Respondents as set out on the pages of the record earlier referred to, could only have been placed before the Tribunal vide their completed Form 008.
In any event, having found that the Tribunal made a pronouncement in respect of the Appellant’s additional ground 7, (which is the contrary of the position of the Appellant), it would appear to be only commonsensical or logical that the Appellant’s position that the Tribunal did not make a pronouncement in respect of the additional ground 7, and any other complaint predicated thereon, must crumble or crash to the ground like a pack of cards. The Appellant has therefore not succeeded in impugning the correctness of the ruling of the Tribunal in his motion on notice dated 8/9/2011 and filed on the same date. In the circumstances the issue upon which the instant appeal is decided, having been resolved in the affirmative; is against the Appellant.
In the final result, the appeal lacks merit and fails. The appeal is hereby dismissed and the ruling of the Tribunal dismissing the Appellant’s motion on notice dated 8/9/2011 and filed on the same date, is affirmed. Costs in the sum of N30,000.00 is awarded in favour of the 1st and 2nd Respondents and against the Appellant.
CA/E/EPT/39A/2011:
This appeal is against the ruling of the Tribunal delivered on 7/10/2011 dismissing the Appellant’s motion on notice dated 15/9/2011 and filed on 16/9/2011. The motion in question which is at pages 734 – 739 of the record reads: –
“TAKE NOTCE that at the de novo Pre-Hearing Sessions and without prejudice to pending motion to dismiss the petition, this Honourable Tribunal shall be moved on Friday the 16th day of September,2011 or so soon thereafter as Counsel may be heard on behalf of the 1st Respondent/Applicant (sic) seek the following reliefs, viz:
(1) AN ORDER striking out the petition for incompetence and lack of jurisdiction by the tribunal;
IN THE ALTERNATIVE
(2) AN ORDER striking out paragraphs 8E(I)-(VI), F(n) of the petition and evidence related thereto as contained in the written statements on oath of the 1st Petitioner and her witnesses namely; AA, BB for non joinder of individuals, security agents against whom allegations of negligence and criminality were made against;
(3) AN ORDER striking out paragraphs 8A(I), 8A(II), 8A(III), 8A(IV), 8A(V), 8B(I), 8B(II), 8B(III), 8B(IV), 8B(V), 8C(I)- (8CXIII), 8D(I)- 8D(II), and consequently 8F(I) – 8F(IV), 8G, 8H(a) – (n), and 8(I) inclusive and the accompanying witness statements on oath and exhibits related thereto for failure to join the Electoral Officers, Ward Collation Officers, Supervisory Presiding Officers, Constituency Returning Officers, against whom serious allegations of negligence and criminal conduct were made.
4. AN ORDER striking out paragraphs 8A(I), 8A(II), 8A(III), 8A(IV), 8A(V), 8B(I), 8B(II), 8B(III), 8B(IV), 8B(V), 8B(VI), 8B(VII), 8B(I) (sic) 8B(XIII) 8D(I) – 8D(II), 8C(I) – 8C(XIII), 8E(I) – 8E(VI) and consequently paragraphs 8F(I) – 8F(IV), 8G, 8H(a) (n), and 8(I) and the accompanying petitioners’ witness statements on oath and exhibits for failure to join Action Congress of Nigeria whose votes are being challenged in the petition without being joined as a party.”
The grounds for the application are divided into “A” which consists of (i) – (xxi); (B), (C) and (D). (i) – (xxi) of “A”, set out the persons that the Petitioners (i.e. Respondents in the instant appeal) did not join in the Petition; while “B” – “D” read thus: –
“(B) By failing to join the aforementioned persons in the petition, their respective rights to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) have been violated;
(C) Upon the offending paragraphs being struck out for non-joinder of necessary parties the petition is bereft of any substratum and is liable to be struck out. The Tribunal lacks the requisite jurisdiction to entertain the petition as presently constituted notwithstanding the provisions contained in Section 137(3) of the Electoral Act 2010 (as amended).”
The Appellant had before the Tribunal as constituted by Hon. Justices Bwala; Cocodia and Adeigbe, brought a similar motion on notice dated 30/6/2011 and filed on the same date in which he sought for the following reliefs viz:
“1. AN ORDER striking out the petition for incompetence and lack of jurisdiction by the tribunal;
Or Alternatively;
2. AN ORDER striking out paragraphs 8A(i), 8(II), (III), (IV), (V), 8B(I), (II), (III), (IV), (V), (sic) 8B(I), (II), (III), (IV), (V), (VI), (VII); (VIII), (IX), (X), (XI), (XII), & (XIII), 8D(I), (II), 8C(I) – (XIII), 8E(I), (II), (III), (IV), (V), (VI) and consequently paragraphs 8F(I), (II), (III), (IV), 8G, 8H(a) (n), and 8(I) and the accompanying witness statements on oath and exhibits related thereto for failure to join the Ward Collation Officers, Supervisory Presiding Officers, Constituency Returning Officer, Presiding Officers, individuals and persons whom serious allegations of negligence and criminal conduct were made against.
The grounds for the application like those of the Appellant’s motion dated 15/9/2011 were divided into “A” which consists of (i) – (xx); (B), (C) and (D). Grounds “B”, (C); and “D” of the two motions are ipsissima verba.
The motion brought before the Tribunal as constituted by Hon. Justices Bwala; Cocodia; and Adeigbe, was dismissed; while the Tribunal as presently constituted, save for striking out paragraph 8E(III) of the Petition equally dismissed the Appellant’s motion dated 15/9/2011, in its ruling of 7/10/2011.
The Appellant being dissatisfied with the decision of the Tribunal delivered on 7/10/2011 (save for the part striking out paragraph 8E(III) of the Petition), lodged an appeal against the same. Appellant’s Notice of Appeal dated 20/10/2011 was filed the same date. The Notice of Appeal contains three grounds of appeal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. 1st Respondent/Appellant’s Brief of Argument is dated 4/11/2011 and filed on the same date. The Brief of Argument was settled by Chief G. N. Uwechue, SAN; Rickey Tarfa, SAN; Chief Niyi Akintola, SAN; Chief Emeka Ngige, SAN; Hon. Bona Oraekwe; Ngozi Udodi (Ms); and P. E. Okoye, Esq. The Brief of Argument of the 1st and 2nd Respondents dated 14/11/2011 and filed on the same date was settled by O.A. Obianwu, Esq. (SAN); H. C. Onwuegbuke, Esq.; G. B. Obi, Esq.; T. U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The 3rd Respondent in the appeal did not file any Brief of Argument. The appeal was entertained on 30/11/2011. At the hearing of the appeal both Emeka Ngige (SAN) learned senior counsel for the Appellant and T.U. Oguji learned lead counsel for the Respondents adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in respect of their positions in the appeal.
Three issues are formulated for the determination of the appeal in the Appellant’s Brief of Argument. They read thus: –
“(1) Whether in the light of the averments in the petition, the lower tribunal was right in holding that the non-joinder of Action Congress of Nigeria as a correspondent in the proceedings was not fatal to the case of the petitioners. (Distilled from Ground 1)
(2) Whether the lower Tribunal was right in holding that in de novo proceedings all orders made by the previous panel, including its ruling of 29th July, 2011, remained valid and subsisting despite being aware of binding decisions of superior Courts to the contrary cited to it. (Distilled from Ground 2)
(3) Whether the INEC staff indicted in the petition for sundry criminal conduct and official negligence in the course of the questioned election ought to be joined as respondents to the petition notwithstanding the joinder of INEC as a party to the proceedings.”
The issues formulated by the Respondents for the determination of the appeal in their Brief of Argument read: –
“i. Whether the Tribunal was right when it held that it was bound by the earlier decision of the Tribunal, albeit differently constituted. (Ground 2)
ii. Whether the decision of the Tribunal that it was unnecessary to join officers of INEC against whom criminal allegations were made is correct. (Ground 3)
iii. Whether the non joinder of Action Congress of Nigeria is fatal to the petition. (Ground 1)”
The appeal will be determined upon the issues formulated by the Appellant as the issues formulated by the Respondents would appear to be a recouching and re-arrangement of those formulated by the Appellant.
ISSUE 1
The argument of the Appellant in support of the stance that the Action Congress of Nigeria (hereafter simply referred to as “ACN”) ought to have been joined as a co-respondent in the Petition, in the main, is anchored on the fact that the votes scored in an election, belong to the political party as evinced by the recordings or entries in Forms EC8A to EC8D as pleaded in the Petition. Section 221 of the 1999 Constitution was referred to as buttressing this stance. The Appellant therefore reasoned that in the situation as in the instant Petition, where the Petitioners (now Respondents) are alleging deprivation of votes and/or over-voting, with a prayer that votes cast in the election be cancelled, then the ACN that would be affected by an Order of nullification, if the allegation are upheld, ought to have been joined in the Petition as a respondent. Accordingly, that all paragraphs of the Petition which directly or indirectly affect the votes of the political party ought to be struck out for non-joinder. The cases of Amaechi V. INEC (2008) NWLR (Pt.1048) 437 and Odedo v. INEC (2008) 7 SC 25, in which the provision of Section 221 of the Constitution were considered, and which cases went to show that it is a political party that wins or loses an election, were cited by the Appellant. It is the submission of the Appellant that the Tribunal was in serious error when it refused to strike out the offending paragraphs of the Petition as prayed by him (i.e. Appellant) on the ground that Section 137 of the Electoral Act (as amended) places no obligation on a petitioner to join a political party as a respondent other than those statutory respondents envisaged therein, and that the presence of the Appellant who stood as the candidate of the ACN in the questioned election made the joinder of the political party unnecessary. The Appellant submitted that Section 137(3) of the Electoral Act (supra) was inapplicable in the circumstances of the instant Petition. It is the further submission of the Appellant that since the Tribunal found it necessary to strike out paragraph 8E(III) of the Petition in which allegations were made against Mr. Dozie Nwankwo, in the same token, it should have struck out paragraphs of the Petition where the votes earned by ACN are being challenged. The Appellant also submitted to the effect that his presence in the Petition cannot satisfy the constitutional requirement of giving ACN a fair hearing as he is a different entity from the political party. The unreported decision of this Court delivered on 14/7/2011 in Appeal No.CA/A/EPT/PRES/1/2011 – CPC v. INEC, was cited as authority showing that Section 137(3) of the Electoral Act (supra) did not relieve a petitioner from joining non-INEC staff, like security agents and political parties as respondents in an election. The case of Buhari v. Yusuf (2003) 6 SC (Pt.II) 156 was also cited by the Appellant to buttress his submissions.
Dwelling on the non-joinder of ACN in their Brief of Argument, the Respondents submitted to the effect that the Tribunal was right in its decision that the non-joinder of ACN is not fatal to the Petition. It is the submission of the Respondents that it has not been shown that any allegation of wrong doing was made against ACN in the Petition to warrant its joinder. It is also the submission of the Respondents that Section 65 of the Constitution and Sections 31, 32, 34 – 37, 39, 41, 69-71 and 75 of the Electoral Act (supra) are the provisions to be considered in determining the issue of who contested an election. The Respondents not only submitted that the case of Amaechi V. INEC (supra) cited by the Appellant is based on its peculiar facts, but also that the ACN not being a statutory respondent, need not be joined in the Petition even though it might have an interest in the outcome of the Petition as it sponsored the Appellant as a candidate in the questioned election. That as ACN is not a statutory respondent and no criminal allegation has been made against it, the political party did not qualify to be joined in the Petition. The case of Buhari v. Yusuf (supra) was equally cited in aid.
It is no doubt settled law that election petitions are sui generis and should be treated in that domain or realm, See ABUBAKAR V. YAR’ADUA (2008) All FWLR (Pt.404) 1409 at 1450. This being the nature of election petitions, the courts have consistently held to the effect that election petitions are different from normal civil cases. They are conducted under the peculiar provisions of the relevant electoral law and not necessarily related to the ordinary civil rights and obligations of the parties concerned. An election petition is a proceeding that is of its own kind possessing an individualistic character, unique or like, only to itself. In other words, the proceedings have no affinity with any action known to common law. See BAMIGBOYE V. SARAKI [2009] All FWLR (Pt.484) 1573 at 1595.Necessary parties in an Election Petition in my considered view, therefore, have to be determined within the confines of the Electoral Act (supra) and of course the Constitution against the backdrop of the nature of an election petition as stated above.
The Electoral Act in Section 133(1) not only provides for the means or process of challenging or questioning an election and return made in any election conducted pursuant to the provisions of the Act, but also the complaints that are permissible in challenging or questioning such election. An election conducted under the Act can only by questioned by “an election petition” and the complaints permissible therein, are complaints of “undue election” or that of “undue return” in relation to the person elected or returned in the questioned election and who must be joined as a respondent in the petition. It is my considered view that the provision of Section 133(1) of the Electoral Act (supra), cannot be construed as stipulating that only the person elected or returned in an election conducted pursuant to the provisions of the Electoral Act, is to be the only respondent in an election petition. In other words, it cannot be argued that an election petition is to have only the person elected or returned as the sole respondent by virtue of the provision of Section 133(1) (supra). This is because the operative words in the provision of Section 133(1) in this regard are ”Joined as a respondent” and not ‘Joined as the respondent”. Section 137 of the Act while stipulating that the person whose election is complained of shall be referred to as “the respondent” goes further to provide for the joinder in the Petition of other INEC officials against who the petitioner complains of their conduct in the election as respondents. The provisions of Section 137 of the Electoral Act are however clear that once INEC is joined as a respondent in a Petition, there is no need to join any of its officials the petitioner complains of the conduct in the election as INEC having been made a respondent therein, shall be deemed to be defending the Petition on its own behalf and on behalf of its officers, no matter the nature of the complaints against such officials. It is my considered view that the provisions of Sections 133(1) and 137 of the Electoral Act (supra) clearly show that an election petition is properly constituted, once the process has as parties, a candidate in an election and/or the political party of the candidate that participated in the election on the one hand, challenging the return of the person returned as the winner of the questioned election as well as body (i.e. INEC) that conducted the questioned election, on the other hand. It is obvious from the face of the instant Petition that the Respondents are respectively, a candidate in the questioned election and a political party that participated in the questioned election on the one hand, while the Appellant is the person returned in the election and the 3’o Respondent is the body that conducted the questioned election on the other hand. The law is settled that a properly constituted action cannot be defeated by misjoinder and/or non-joinder.
The Appellant relying on Section 221 of the Constitution (supra) and the cases of Amaechi and Odedo (both supra) submitted to the effect that the votes cast in an election belong to the political party; hence the political party ought to be a co-respondent with the person returned in a situation where allegations of deprivation of votes and over-voting are made with a prayer for cancellation of the votes. Section 221 of the Constitution reads: –
“No association, other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”
(Underlining supplied by me).
It is my considered view that the Appellant in relying on the provision quoted above, has conveniently lost sight of the underlined words which show that a political party canvasses for votes on behalf of the candidate. In other words that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that it is against the backdrop of this, that the Electoral Act (supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election and further provides for the means of challenging the return of the candidate (and not his political party). It would equally appear that it is against the backdrop of the fact that political parties canvass for votes on behalf of their respective candidates that while Forms EC8A – ECSE referred to by the Appellant bear the names of political parties, it is still the candidate of the political party (and not the political party itself) that has the highest number of votes against its name that is declared as the winner of an election conducted under the Electoral Act (supra). The Respondents have submitted that the case of Amaechi (supra) relied upon by the Appellant was based on its peculiar facts and that it did not decide that a political party is a necessary party in an election petition. The Respondents are in my considered view very correct in their summation concerning the case of Amaechi (supra). It should be understood that the case was not an election petition matter. The same applies to Odedo’s case (supra). The decision in the Amaechi case (supra) was to ensure that justice was done to the candidate of the political party for an election but who the political party wrongly disallowed from contesting the election as its candidate in the election, and which was won by the wrong candidate which the political party fielded or sponsored for the election. The Electoral Act and the various Forms referred to by the Appellant in my considered view at the worst have only succeeded in making both a candidate returned at election and the votes credited to the party in the Forms, to be interchangeable. The submissions of the Appellant to the effect that ACN ought to have been joined as a co-respondent to him, premised on the purported ownership by the ACN of the votes cast for him and which are being sought to be cancelled, in the circumstances, cannot properly warrant the joinder of the said ACN. Consequently, the non-joinder of ACN in the Petition despite the reliefs sought therein, cannot and indeed is not fatal to the Petition.
The Respondents have also submitted that no criminal allegation have been made against the ACN to warrant its joinder. Indeed, it is very obvious from the Petition that there is hardly any averment therein made specifically in relation to the ACN. In the light of this, one cannot but be at a loss to appreciate the basis for the complaint of non-joinder of ACN and the identity of the paragraphs of the Petition to be struck out, from the face of the Petition, 0s prayed by the Appellant. The Forms relied upon by the Appellant in support of his stance that the ACN ought to have been joined in the Petition and/or that votes owned by the ACN are being challenged directly or indirectly in the Petition, having regard to the averments in the Petition, constitute nothing more than evidence which the Respondents propose to adduce at the hearing of their Petition. Though I know the position of the law amongst others to be (i) that evidence will not be allowed at the hearing of a matter in respect of a fact which is not pleaded; and (ii) that an averment in a pleading and in respect of which evidence is not adduced will be deemed as abandoned; I however know of no legal precedent that allows for the striking out of an averment in a pleading on the basis of the proposed evidence to be adduced at the hearing of the matter as the Appellant would be portending in the instant matter. Evidence after due evaluation and ascription of credibility, is used to determine the entitlement of a party to the reliefs he seeks in a case. The situation in the instant Petition not being one where there are specific averments in the Petition against the ACN the question of its being a necessary party in the Petition or the breach of its right to fair hearing clearly resides in the realm of speculation and cannot warrant the joinder of the said ACN or the striking out of any paragraph of the Petition. Indeed, the striking out of paragraph 8E(III) of the Petition by the Tribunal, as clearly shown in the ruling appealed against was due to the fact that there was an express allegation made against Mr. Dozie Nwankwo and yet he was not joined in the Petition. The Tribunal was clearly right in this regard. The Appellant is not dissatisfied with this; neither are the Respondents too.
In the light of all that has been said before now, I simply do not see how the Tribunal was wrong in its decision concerning the non-joinder of the ACN. Accordingly, Issue 1 is resolved against the Appellant.
ISSUE 2:
This issue questions the propriety of the pronouncement of the Tribunal concerning ‘de novo trial” and its conclusion that it is bound by all the orders made by the previous panel including the ruling of 29/7/2011 which remained valid and subsisting.
This very issue concerning the correctness of the pronouncement of the Tribunal in relation to “de novo trial” was Appellant’s issue 2 in APPEAL NO.CA/E/EPT/39/2011: the judgment in which immediately precedes the instant one. The submissions of the Appellant in respect of the issue at pages 25 – 36 in his Brief of Argument earlier identified in the instant appeal are more or less a rehash of the submissions contained at pages 17 – 23 in his Brief of Argument in APPEAL NO. CA/E/EPT/39/2011. The issue concerning the correctness of the pronouncement of the Tribunal on “de novo trial” was elaborately dwelled upon in the judgment in APPEAL NO.CA/E/EPT/39/2011 and re-produced hereunder is part of what I said on the issue: –
“I have no doubt whatsoever that having regard to the settled authorities on the meaning of “de novo trial’ or “de novo hearing’, what the Tribunal stated in respect of “de novo trial’ in its ruling appealed against is manifestly wrong. It would however appear that the Respondents in their Brief of Argument grasped the circumstances of the instant Petition better than the Appellant when they said at paragraph 4.5 thereof thus: –
“The Appellants next complaint, is that the tribunal erred when it held that it was bound by previous orders made by the previous panel of the same Tribunal. According to the Appellant orders made in previous proceedings are not valid and subsisting in a de-novo trial. The Appellant loses sight of the fact that a trial de-novo, presupposes that there was in fact a trial which is obliterated by the judgment of the Appellate court, which is not the case in the instant matter. It is in this vein that we submit with respect that the subsequent panel of the Tribunal was right when it held that it was bound by the decisions of the first panel on the earlier application of the appellant and that it ought not to revisit the earlier decision…”
There is no doubt that the instant Petition was never transferred before another panel of the Tribunal for hearing therein to commence de-novo pursuant to any court order.
What happened in the Petition was that the panel hitherto entertaining the Petition was changed or reconstituted at a point in time. This is not the same thing as an order of an appellate court directing or sending a case back for de-novo trial. The matter before the Tribunal is an election petition in respect of which time is of the very essence. Indeed, the 1999 Constitution (as amended) in Section 285(6) provides that “an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition’. The concept of ‘de-novo trial’ in my considered view cannot be appropriately imported into the instant Petition having regard to its peculiar circumstances against the backdrop of the provision of Section 285(6) of the Constitution (supra). To do so would constitute an infringement of the time frame the Respondents have for the determination of their Petition.
The situation in the instant Petition upon the reconstitution of the panel that was hitherto entertaining the same in my considered view was clearly not one of “de-novo trial” but one of the panel as presently constituted taking over from where the disbanded panel stopped and which situation clearly implied the subsistence of proceedings before the disbanded panel, and orders previously made by that panel of the Tribunal. It is settled law that authorities are binding only to the extent that the facts in the case at hand and the authority are the same. The Tribunal clearly made a wrong pronouncement in respect of what “trial de-novo’ is in the ruling appealed against; but at the same time the Tribunal in my considered view was eminently right to have considered itself bound by previous proceedings and orders made in the Petition before it took it over. The settled position of the law is that an appellate court should not concern itself with the reasons for the decision or conclusion of a lower court but with the correctness of the decision or conclusion. Against the backdrop of the position of the law as stated, the wrong pronouncement of the Tribunal in respect of what “de novo trial” is, therefore, cannot and has in no way vitiated its decision in respect of the Appellant’s motion.”
The position in the instant appeal is the same as that in APPEAL NO.CA/E/EPT/39/2011. This should not be surprising, this appeal emanates from the same Petition and the ruling appealed against was also delivered by the Tribunal as presently constituted with Hon. Justices Onajite-Kuejubola; Udu-Eze and Mukhtar as Chairman and members respectively. I see no reason to depart from what I said as re-produced above in relation to ‘de novo trial’ and the position of the proceedings and orders of the previous panel of the Tribunal vis-a-vis the reconstituted panel of the Tribunal and adopting and relying on the same in the instant appeal, I cannot but conclude that while the Tribunal was glaringly wrong in its pronouncement concerning ‘de novo trial’, it was however very correct as to the binding effect on it, of the proceedings and all orders made by the disbanded panel, including the ruling of 29/7/2011.
In conclusion issue 2 is resolved in favour of the Appellant only to the extent that the Tribunal was wrong in its pronouncement on what a de novo trial is.
ISSUE 3:
This Issue questions the correctness of the decision of the Tribunal that it was unnecessary to join INEC officers against whom allegations of negligence and criminal conduct had been made in the Petition as INEC is a Respondent therein.
Dwelling on the lssue, the Appellant having referred to various paragraphs of the Petition wherein the Respondents made sundry criminal allegations and official negligence against some INEC staff involved in the conduct of the questioned election and some other persons, the Appellant in the main submitted that it was obligatory for the Respondents to have joined all the staff of INEC indicted in the Petition and any other person so indicted as parties, despite the provision of Section 137(3) of the Electoral Act (supra). It is the further submission of the Appellant that Section 137(3) of the Electoral Act (supra) and Paragraph 51 of the First Schedule to the Act, violate the fair hearing provision in Section 36 of the Constitution and is therefore a nullity. The Appellant also submitted to the effect that the decision of this Court in CPC v. INEC (supra) as it relates to the interpretation of Section 137(3) should not be relied on as the said case had not overruled the previous decisions of this Court wherein it had been held that joinder of indicted INEC staff was imperative notwithstanding the proviso in Section 144(2) of the 2006 Electoral Act (which like the 2010 Act) removed the joining of INEC staff where the Commission is joined. Some of the relevant cases decided by this Court in that regard were cited by the Appellant.
Dwelling on the issue at hand, the Respondents in the main submitted that the decision of the Tribunal that it INEC having been made a party in the Petition, joining her officials against whom allegations of crime were made was unnecessary, is in accord with the current position of the electoral law. To buttress their stance, the Respondents referred to Section 137(3) of the Electoral Act (supra) as well as Paragraph 51 of the First Schedule to the Act, and also cited some unreported decisions of this Court which include, those in Appeal No.CA/E/EPT Udeh v. Nwankwo decided on 19/8/2011 and Eluemunoh v. Obidigwe decided on 14/7/2011.
In my considered view, all that needs to be done in resolving the issue at hand, is an interpretation of Section 137(3) of the Electoral Act (supra) and this will not be a difficult task at all given the fact that this very Court has given an exposition of the said Section in many cases, too numerous to set out in this judgment. One of such cases is the decision (unreported) delivered on 19/8/2011, by this very Division of this Court in APPEAL NO.CA/E/EPT/02/2011 – DR. OKECHUKWU UDEH & ANOR. V. BEN NWANKWO & ORS, and which decision the Respondents have cited in their Brief of Argument. The decision of this Court under reference, has clearly settled the issue at stake. Therein, this Court decided to the effect amongst others, that pursuant to the provisions of Section 137 of the Electoral Act and those of Paragraph 51(1) of the 1st Schedule to the said Act, the joinder of INEC officials in a Petition, no matter the nature of complaint made against them, is unnecessary once INEC is a party in the Petition as INEC is deemed to be defending the Petition for itself and on behalf of its officials against whom allegations have been made. It was also made clear in the decision that the issue of fair hearing as it pertains to INEC officials against whom allegations are made in the Petition but not joined as parties, does not arise for consideration at the stage when objection is taken to the competence of the Petition. The Court further opined that “the vexed issue of fair hearing is a deep river waiting to be crossed when allegations of criminal conduct are made out against INEC Officers who are not Respondents in a Petition.”
This Court is bound by its earlier decisions, and indeed, the decision (unreported) delivered on 19/8/2011 in APPEAL NO.CA/E/EPT/02/2011 (supra) as earlier stated has been applied by this Court in a number of election appeals, too many to set out in this judgment. I have not bothered to dwell on the need to join “other persons” indicted in the Petition and who the Appellants rolled up with indicted INEC staff in his submissions, because the issue under consideration as couched by the Appellant does not include “other persons”. In the light of the case decision of this Court earlier referred to above, I therefore find the decision of the Tribunal on the issue under consideration very correct. Issue 3 is therefore resolved against the Appellant.
In the final result, the appeal lacks merit and it accordingly fails. It is hereby dismissed. The ruling of the Tribunal delivered on 7/10/2011 in respect of the Appellant’s motion on notice dated 15/9/2011 and filed on 16/9/2011 is affirmed.
Costs of N30,000.00 is awarded in favour of the 1st and 2nd Respondents and against the Appellant.
APPEAL NO.CA/E/EPT/39B/2011:
This appeal is against the ruling of the Tribunal delivered on 7/10/2011 dismissing the Appellant’s motion on notice dated 26/9/2011 and filed non 27/9/2011 in which he sought in the main for: –
“1. AN ORDER striking out paragraphs 1(b), (c), (d), (e), (f), (g), (h), (i), (j),(k),(l), 2(e), (f), (g), (h), (i)(sic), (m), (n), (o), and (v) inclusive of the Petitioners’ Reply to the 1st Respondent’s Reply dated 21st June 2011 and the corresponding paragraphs (i.e. 2-15 and 2-14 respectively) of the accompanying witness statements on oath of the 1st Petitioner and Azom-Chine Uchenna and list of petitioners’ additional documents, for noncompliance with the provisions of the Electoral Act 2010 (as amended) and Evidence Act.”
The grounds of the application as set out in the motion on notice read thus: –
“(i) Save for Part II of his Reply dealing with objection to votes, the 1st Respondent did not raise new facts or issues that warranted the Petitioners to file a Petitioners’ Reply in the manner shown in their Reply of 21st June 2011.
(ii) The facts contained in the Petitioners’ Reply, particularly the enumerated paragraphs are mainly repetitive of contents of their Petition, re-production of contents of INEC manual and introduction of new facts happening after the filing of the petition tending to amend and add to the contents of their Petition contrary to the provisions of Paragraph 16(1)(a) and (b) of 1st Schedule to the Electoral Act 2010.
(iii) New facts and new issues introduced in the Petitioners’ Reply and witness statements over-reach the 1st Respondent as the 1st Respondent will not have any opportunity to respond to them.
(iv) The two witness statements accompanying the Petitioners’ Reply were filed without leave of the Tribunal and contrary to the provisions of Paragraph 48(5) of the 1st Schedule to the Electoral Act 2010.’
In the ruling delivered in the motion on 7/10/2011, the Tribunal dismissed the said motion on notice. The Appellant being dissatisfied with the decision of the Tribunal dismissing the motion lodged an appeal against the same. Appellant’s Notice of Appeal dated 21/10/2011 contains two grounds of appeal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. 1st Respondent/Appellant’s Brief of Argument is dated 4/11/2011 and filed on the same date. The Brief of Argument was settled by Chief G. N. Uwechue, SAN; Rickey Tarfa, SAN; Chief Niyi Akintola, SAN; Chief Emeka Ngige, SAN; Hon. Bona Oraekwe; Ngozi Udodi (Ms); and P. E. Okoye, Esq. The Brief of Argument of the 1st and 2nd Respondents dated 14/11/2011 and filed on the same date was settled by O.A. Obianwu, Esq. (SAN); H. C. Onwuegbuke, Esq.; G. B. Obi, Esq.; T. U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The 3rd Respondent in the appeal did not file any Brief of Argument. The appeal was entertained on 30/11/2011. At the hearing of the appeal both Emeka Ngige (SAN) learned senior counsel for the Appellant and T. U. Oguji learned lead counsel for the Respondents adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in respect of their positions in the appeal. Arthur Obi Okafor (SAN) learned lead senior counsel for the 3rd Respondent simply urged the Court to do justice in the appeal as the no Brief of Argument was filed by the said 3rd Respondent.
Two issues are formulated for the determination of the appeal in the Appellant’s Brief of Argument. They read thus: –
“(1) Whether the Petitioners require leave of the Tribunal before they could file a witness statement on oath accompanying the petitioners’ reply to a respondents (sic) reply.
(2) Whether the petitioners’ reply the 1st Respondent’s Reply, particularly paragraphs 1(b), (c), (d), (e), (f), (g),(h),(i), (j), (k), (l), 2(e), (f), (g), (h), (i)(sic), (j), (m), (n), (o), and (v) inclusive offend against the provisions of Paragraph 16(1)(a) and (b) of 1st Schedule to the Electoral Act 2010 (as amended),’
The Respondents too formulated two issues for the determination of the appeal. The issues read thus: –
‘(i) Whether the decision of the Tribunal that the Petitioners (sic) Reply to the 1st Respondents (sic) Reply conformed with the provisions of paragraph 16(1) of the 1st Schedule to the Electoral Act 2010 is right. (Ground 2)
(ii) Whether the witnesses (sic) statements on oath filed by the Petitioners along with their Reply to the 1st Respondents Reply are proper.”
The appeal will be determined on the issues formulated by the Appellant as the issues formulated by the Respondents can be conveniently treated under them.
ISSUE 1:
This issue questions the propriety of the witnesses statements on oath accompanying the Respondents’ “Petitioners’ Reply” to the Reply of the Appellant on the ground that they were filed without the leave of the Tribunal.
Dwelling on the issue, the Appellant in the main submitted that as the provision of Paragraph 16(1) of the First Schedule (which provides for the filing of a petitioner’s reply to the reply of a respondent) did not state the documents that should accompany a petitioner’s reply, it was incumbent on the Respondents to have sought for the leave of the Tribunal before they could file the witnesses statement on oath that accompanied the “Petitioners’ Reply” they filed in response to his (Appellant’s) Reply. The Appellant referred to Paragraph 41(8) of the First Paragraph of the First Schedule in aid of the submission. It is the further submission of the Appellant that the Tribunal was wrong to in holding that “if the law allows a petitioner or respondent to raise issue of fact in any reply, it will be necessary for a witness to make statement on oath to support the facts” as the rules do not support this point. The Appellant accused the Tribunal of not interpreting the law but of expanding it and that this is not the duty of the Tribunal. The cases of Obi v. INEC (2007) 7 SC 268 and A-G of Kano State v. A-G of the Federation (2007) 3 SC were cited in aid of the stance of the Appellant.
Dwelling on the issue at hand, the Respondents submitted that written depositions of witnesses are clearly not envisaged as documents from a community reading of sub-paragraphs 1 – 9 of Paragraph 41of the First Schedule (supra) and that Paragraph 41(8) (supra) had been stretched to absurdity by the Appellant. The Respondents also submitted that as written statements on oath of witnesses constitute the evidence by which the averments in a Petition are to be proved, it is extremely absurd and senseless to suggest that the Electoral Act which made provisions for the filing of a Petition or Reply and the automatic filing of written depositions with the processes will expect anything less, in respect of a petitioner’s reply to a respondent’s reply.
It is clear from the provisions of Paragraph 12 of the First Schedule to the Electoral Act that it is by way of filing a reply that a respondent can respond to the case made against him in a petition by a petitioner. The provisions of the Paragraph in question further provide for the manner/form in which a reply should be presented and also provide that a reply should be accompanied by copies of documentary evidence, list of witnesses and their written statements on oath. In other words Paragraph 12 of the First Schedule to the Electoral Act (supra) provides for what a reply in an election petition is and what should accompany it. By Paragraph 16 of the First Schedule to the Electoral Act (supra) a petitioner is entitled within the time frame stated therein, to file a Reply to a respondent’s reply where the said respondent’s reply raises new issues of facts in defence of his case which the Petition has not dealt with. It is my considered view that “Reply” whether it is being filed by the respondent or by the petitioner in the circumstances provided for under Paragraph 16 (supra), is for the purpose of enabling the party filing the same respond to the case of his opponent. Paragraph 12 as earlier said has not only provided for the form of a reply, but also for what should accompany the same. Some of these being copies of documentary evidence, list of witnesses and their written statements on oath. Accordingly, against the backdrop that a “reply” remains a “reply” whether it is being filed by a respondent in response to a Petition or in response to a respondent’s reply, it is my considered view that it is most appropriate, nay, imperative for a petitioner filing a reply to the reply of a respondent to accompany the same with copies of documentary evidence, list of witnesses and their written statements on oath at the time of filing, if he wants the process he has filed to qualify as a reply, As there is clearly no requirement for a respondent filing a reply under Paragraph 12 of the First Schedule to first procure the leave of the Tribunal before he accompanies the same with witnesses statements on oath, there is likewise no such requirement for a petitioner filing a reply pursuant to Paragraph 16 of the First Schedule to do this. See also Paragraph 2 of the Election Tribunal & Court Practice Directions 2011 which provides that Paragraph 4(5) of the First Schedule to the Electoral Act 2010 (as amended) shall apply mutatis mutandis to a petitioner’s reply. The aforementioned Paragraph 4(5) of the First Schedule sets out what should accompany an election petition and they include written statements on oath of witnesses.
In the light of all that has been said above, I have no difficulty whatsoever in resolving issue 1 against the Appellant.
ISSUE 2:
This issue questions the decision of the Tribunal in not striking out the paragraphs of the Respondents’ “Petitioners’ Reply to the Appellant’s Reply as prayed by the Appellant.
The Appellant’s stance on the issue is that the Respondents in their “Petitioners’ Reply” went haywire and took advantage of their Reply to re-pled their case on over-voting which is not allowed as parties had previously joined issues on this aspect of the Respondents’ case. The Appellant further said that the Respondents took advantage of their Reply to plead facts that took place after the Petition had been filed at the Tribunal. The cases of Dingyadi v. Wamako (2008) 17 NWLR (Pt.1116) 395; and Orji v. Ugochukwu (2009) 14 NWLR (Pt.1161) 296 amongst others were cited by the Appellant in aid of his various submissions.
Dwelling on the Issue at hand, the Respondents in the main submitted that the Tribunal was right in holding that their Reply was proper, as a calm and sober examination of the pleadings in the Petition shows that the Appellant raised new issues of fact in his reply and that all they (Respondents) have done in their Reply was to answer those new issues.
I have painstakingly looked at the paragraphs of the Respondents’ Reply particularly the paragraphs of the same that the Appellant prayed the Tribunal to strike out. Suffice it to say that just as the Tribunal did find in its ruling appealed against, I too find the “Petitioners’ Reply” filed by the Respondents to be in strict response to new facts raised by the Appellant in his reply to the Petition. In the light of this, Issue 2 is resolved against the Appellant.
In the final result, the appeal is unmeritorious and it fails. Accordingly the appeal is dismissed and the ruling of the Tribunal delivered on 7/10/2011 in respect of the Appellant’s motion on notice dated 26/9/2011 and filed on 27/9/2011 is affirmed.
Costs in the sum of N30,000.00 is awarded in favour of the 1st and 2nd Respondents and against the Appellant.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree
Appearances
Emeka Ngige (SAN) with B. N. Nwachukwu (Mrs.); Ngozi Udodi (Ms); Bona Oraekwe P. E. Okoye and C. F. Odigbo (Miss)For Appellant
AND
T. U. Oguji with C. N. Abiakam (Mrs.); and N. R. Owoh (Miss) for the 1st and 2nd Respondents.
Arthur Obi Okafor (SAN) with O. J. Nnadi (SAN); S. O. Ibrahim (CLO, INEC) for the 3rd Respondent.For Respondent
