NWOYE TONY OKECHUKWU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2014)LCN/7126(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/E/EPT/03/2014
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
M.O. BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
NWOYE TONY OKECHUKWU Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER (ANAMBRA STATE)
3. THE RETURNING OFFICER (ANAMBRA STATE GOVERNORSHIP ELECTION)
PROF. JAMES EPOKE
4. THE ELECTORAL OFFICER
(Aguata Local Government Area)
5. THE ELECTORAL OFFICER
(Orumba North Local Government Area)
6. THE ELECTORAL OFFICER
(Orumba South Local Government Area)
7. THE ELECTORAL OFFICER
(Ekwusigo Local Government Area)
8. THE ELECTORAL OFFICER
(Ihiala Local Government Area)
9. THE ELECTORAL OFFICER
(Nnewi North Local Government Area)
10. THE ELECTORAL OFFICER
(Nnewi South Local Government Area)
11. THE ELECTORAL OFFICER
(Idemili North Local Government Area)
12. THE ELECTORAL OFFICER
(Idemili South L.G.A)
13. THE ELECTORAL OFFICER
(Anaocha L.G.A)
14. THE ELECTORAL OFFICER
(Njikoka L.G.A)
15. THE ELECTORAL OFFICER
(Dunukofia L.G.A)
16. THE ELECTORAL OFFICER
(Awka South L.G.A)
17. THE ELECTORAL OFFICER
(Awka North L.G.A)
18. THE ELECTORAL OFFICER
(Onitsha North L.G.A)
19. THE ELECTORAL OFFICER
(Onitsha South L.G.A)
20. THE ELECTORAL OFFICER
(Ogbaru L.G.A)
21. THE ELECTORAL OFFICER
(Oyi L.G.A)
22. THE ELECTORAL OFFICER
(Ayamelu L.G.A)
23. THE ELECTORAL OFFICER
(Anambra East L.G.A)
24. THE ELECTORAL OFFICER
(Anambra West L.G.A)
25. CHIEF WILLY MADUABUCHI OBIANO
26. ALL PROGRESSIVES GRAND ALLIANCE (APGA) Respondent(s)
RATIO
WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE DECISION BEING CHALLENGED ON APPEAL
As regards the preliminary objection it is settled that grounds of appeal and the issues distilled therefrom must arise from or relate to the decision being challenged on appeal. Where the grounds of appeal and the issues distilled therefrom do not arise from or relate to the decision complained of they are incompetent. See Akingbola V. Chairman, E.F.C.C.- [2012] 9 NWLR Pt. 1306 page 475 at 497. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NO THE ISSUE OF QUALIFICATION OR NON-QUALIFICATION OF A CANDIDATE OF AN ELECTION IS LIMITED TO CONSTITUTIONAL REQUIREMENTS ALONE
The issue of qualification or non-qualification under Section 138 is not limited to constitutional requirements alone. I believe I am fortified in this view by the Judgment delivered by Dahiru Musdapher (CJN) in Suit Nos. SC/381/2011, and SC/383/2011, P.D.P. and Danial I Saror & Ors. And Hon. Gabriel Yorwua Suswan and Senator Danial I Saror & Ors on 28th November, 2011where his Lordship held as follows:
“In my view, there is no dispute whatever that the Tribunal can deal with the issue of the qualification of a candidate to contest the particular election and it does not matter whether the impediment is constitutional or otherwise. To dismiss the petition at that stage without hearing evidence against the clear wording of section 138 (1) of the Electoral Act is clearly wrong.
The issue of qualification of a candidate to contest an election is clearly within the jurisdiction of the Tribunal”.
See also Dangana V. Usman (2013) 6 NWLR Pt. 1349 page 50 at 80. Salim V. CPC (2013) 6 NWLR Pt. 135 page 500 at 524-525. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT A PARAGRAPH IN A PLEADING CAN BE READ IN ISOLATION
It is the law that a paragraph in a pleading can not be read in isolation, in order to get the gist or the real fact being pleaded, the entire paragraphs of the pleading must be read together. See Ngige V. Obi (2006) 14 NWLR (Pt. 999) page 1 at 42. PER BOLAJI-YUSUFF, J.C.A.
M.O. BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein as the Petitioner in petition Number EPT/AN/GOV/04/2013 presented before the Governorship Election Tribunal, Anambra State holden at Awka to challenge the declaration of the 25th respondent as the winner of the Governorship election held in Anambra State on 6th day of November, 2013 prayed the court to nullify the election and to order that a new election be conducted on a date to be set down by the 1st respondent in accordance with the Electoral Act. The grounds of the petition are as follows:
1. The 25th Respondent, Chief Willy Maduabuchi Obiano, was at the time of the election, not qualified to contest the election;
2. The election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act; and
3. The 25th and 26th Respondents were not elected by majority of lawful votes of the election.
By three separate applications filed by the respondents, they prayed the tribunal to strike out paragraphs (4) (a) – (n), 2 (a) – (c), 4 (a) – (e), (4) B, 2 a, b, c & d, 5 (c) (i) (ii) and (iii) 5 (g) on the following grounds:
1) The facts contained in those paragraphs of the petition are pre-election matters within the exclusive jurisdiction of the High Court.
2) The petition constitutes an abuse of the tribunal in that the petitioner’s sponsor being the Peoples Democratic Party instituted Suit No. FHC/AWK/CS/292/2013 Peoples Democratic Party and another V. Chief Willie Obiano challenging the qualification of the 25th respondent on the same facts and the suit was still pending as at the time of filing the petition;
3) They contain allegations of crime against persons who were not made parties to the petition and
4) Paragraphs 4 (a) – (f) and 5 (a) are vague and imprecise having not stated various polling stations and collation centres without particulars and the allegation of double registration being both a criminal offence and a pre-election matter is not a ground upon which an election may be questioned under Section 138 of the Electoral Act, 2010 (as amended) and
5) That the judgment delivered in Suit No. OT/140/2013 Mr. Chuma Tony Oli V. Chief Willie M. Obiano & 1 or is a judgment in rem which binds the parties thereto and the entire world.
In a considered ruling delivered by the tribunal on 25th February 2014, the tribunal upheld substantially the objection of the respondents and struck out some paragraphs of the petition. Dissatisfied by that ruling, the petitioner filed four grounds of appeal. The 25th respondent’s counsel raised a preliminary objection to ground 2 of the appeal and issues 2 and 3 formulated by the appellants’ counsel, I therefore find it necessary to state the grounds of appeal without the particulars which are:
GROUND 1: ERROR-IN-LAW
The learned Chairman and members of the Tribunal erred in law and thereby occasioned a miscarriage of justice, when they held that the issue of qualification under S. 31 (5) and (6) of the Electoral Act 2010 (as amended) is a pre-election matter for which only the Federal and/or State High Courts have jurisdiction.
GROUND 2: ERROR-IN-LAW
The learned Chairman and members of the Tribunal erred in law and thereby occasioned a miscarriage of justice when they struck out the paragraphs of the Appellants petition touching on multiple registration and/or supplying false information to INEC by the 25th Respondent on the ground that they constitute abuse of Court process same having been litigated in suit No: FHC/AWK/CS/292/2013.
GROUND 3: ERROR-IN-LAW
The learned Chairman and members of the Tribunal erred in law and thereby occasion a miscarriage of justice when they struck out paragraphs 4(B), (C), (D) and 5(A) of the Appellants Petition on the grounds that they are imprecise and/or vague.
GROUND 4: MISDIRECTION-IN-LAW
The learned Chairman and members of the Tribunal misdirected themselves in law when they proceeded to hear and determine interlocutory application to strike out paragraphs of the Petition instead of deferring arguments on them to be taken with the final address as enjoined by the Supreme Court in Belgore V. Ahmed (2013) 8 NWLR (Pt. 1335) 60 and PDP V. INEC (2012) 7 NWLR (PT. 1300) 538.
The issues formulated by the appellants counsel in his brief are as follows:
(1) Whether the issues of qualification to contest election under S.31 (5) and (6) of the Electoral Act 2010 (as amended) ousts the Jurisdiction of the Election Petition Tribunal to hear same in favour of the State or Federal High Courts. (Ground 1).
(2) Whether the trial Tribunal was right in its finding that the paragraphs of the Appellant’s Petition touching on multiple registration and/or supplying false information to INEC by the 25th Respondent constitute abuse of Court process having been and/or being litigated in suit nos: FHC/AWK/CS/292/2013 and OT/140/2013: (Ground 2).
(3) Whether the Tribunal was right in striking out Paragraphs 4 (B), (C), (D) AND 5(A) OF THE Petition on the ground that they are imprecise and/or vague and doing so at the pre-trial session instead of at (sic) the conclusion of trial. (Ground 3).
The 25th Respondent filed a Notice of Preliminary Objection dated and filed on 25th March 2014. The Notice of Preliminary Objection and the arguments thereto were incorporated in the 25th Respondent’s Brief of Argument dated and filed on 25th March 2014 at pages 2 to 6. The Notice of Objection is reproduced as follows:
Notice of Preliminary Objection in respect of the objection:
1. Striking out Ground 2 of the Grounds of Appeal as it does not arise from a serene appreciation of the decision of the Tribunal
2. Striking out issue 2 which was said to be distilled from Ground 2 of the Grounds of Appeal as it does not arise from Ground 2 of the Grounds of Appeal
3. Striking out Issue 3 which was said to be distilled from Ground 3 of the Grounds of Appeal as it does not arise from Ground 3 of the Grounds of Appeal.
4. Striking out the argument under the caption Issue 2 and 3 as embodied in the Appellant’s Brief of Argument.
In his Brief of Argument, the 25th respondent’s counsel submitted that Ground 2 does not arise from the decision of the tribunal and Issue 2 does not arise from ground 2 while Issue 3 does not arise from ground 3 as there is no where in ground 3 that the decision of the Tribunal to take the application at the pre- hearing conference was called into question. He urged the court to strike out issues 2 and 3 as issue 3 expounded the scope of ground 3.
The Appellant’s counsel incorporated his response to the objection, the appellant’s counsel in his reply brief submitted that ground 2 is a clear summary of the reasoning and decision of the tribunal in striking out the paragraphs of the petition objected to by the 25th respondent, the appellant need not employ the actual wordings of the tribunal’s decision which indirectly referred to Suit No. OT/140/2013 in its analysis of Suit No. FHC/AWK/CS/292/2013. He argued that the phrase “and doing so at the pre-trial session instead that (sic) the conclusion of trial” is a mere matter of detail and not expansion at ground 3.
As regards the preliminary objection it is settled that grounds of appeal and the issues distilled therefrom must arise from or relate to the decision being challenged on appeal. Where the grounds of appeal and the issues distilled therefrom do not arise from or relate to the decision complained of they are incompetent. See Akingbola V. Chairman, E.F.C.C.- [2012] 9 NWLR Pt. 1306 page 475 at 497.
In respect of the Preliminary Objection, I have perused the reasoning and finding of the lower tribunal on pages 24 – 26 of the Ruling particularly the pronouncements on pages 25 and 26 of the Ruling contained on pages 434 and 435 of the record which are as follows:
“Page 434 – That suit was pending at the Federal High Court, Awka when the Petitioner took out the present petition. Even though the Plaintiff has now discontinued the suit and same has been struck out as shown by the 25th Respondent, the harm was already done”.
Page 435 – There is therefore no doubt that the same issue of disqualification on account of supplying false information to INEC that is again being raised in the present petition was raised in the earlier suit before the Federal High Court Awka. It is trite law that it is the later suit that constitutes an abuse of process that should be struck out. Even though this petition will not be struck out at this stage for other reasons, the paragraphs therein touching on multiple registration and/or supplying false information to INEC by the 25th Respondent are accordingly struck out”.
In my view the above is a clear finding by the tribunal that the appellant’s petition on the ground of the non qualification of the 25th Respondent based on the allegation of multiple registration constitutes an abuse of the tribunals process. Ground 2 of the appeal clearly relates to the decision of the tribunal as highlighted. The appellants’ counsel stated in his brief that issue 3 was distilled from ground 3. However a careful perusal of that issue clearly show that it was distilled from grounds 3 and 4 of the appeal. In view of the foregoing I find no merit in the Notice of Preliminary Objection filed by the 25th Respondent and it is accordingly dismissed.
I have earlier in this judgment stated the issues formulated for determination by the appellant’s counsel. On issue 1, which is whether the issues of qualification to contest an election under Section 31 (5) and (6) of the Electoral Act 2010 (as amended) ousts the jurisdiction of the Election Tribunal to hear same, Counsel contended that the word “may” used in Section 31 (5) of the Electoral Act, 2010 (as amended) is permissive and not mandatory and did not give the State and/or Federal High Court the exclusive jurisdiction to hear and determine the issue of false information by a candidate in an affidavit submitted to INEC. He submitted that the issue of dichotomy between post and pre-election has been settled by the Supreme Court in Dangana V. Usman (2013) 6 NWLR Pt. 1349 page 50 at 80.
On issue 2 which is whether the tribunal was right in finding that the paragraphs of the appellant’s petition relating to giving false information to INEC constitutes an abuse of court process having been litigated upon in Suit No. FHC/AWK/CS/292/2013, Counsel submitted that the parties and the reliefs sought in that suit are different from the parties and the relief sought in the petition, he referred to Kolawole Ind. C. Ltd V. A.G. (Fed.) 2012 14 NWLR Pt. 1320 page 221, T.S.A. Ind. Ltd. V. F.B.N. (No. 1), 2012 14 NWLR Pt. 1320 page 325, Ume V. Iwu (2008) 41 NRN 1.
On issue 3 which is whether the tribunal was right in striking out paragraphs 4 (b), (c), (d) and 5 (a) of the petition at the pre-trial session for being imprecise and vague, he submitted that the tribunal erred when it read and considered the said paragraphs in isolation without reference to other paragraphs which explained and enhanced their meaning. He further submitted that by virtue of paragraph 12 (5) of the First Schedule to the Electoral Act 2010 (as amended), the tribunal ought to defer all interlocutory objections to the petition or part thereof till the final addresses of counsel.
The issues identified by the 1st – 24th respondents’ in his brief are:
1. Whether the Tribunal below in the entire circumstances of the Petition was right to have declined jurisdiction to hear and determine paragraphs of the Petition bordering on the alleged 25th Respondent’s Multiple Registration or supply of information to INEC for his voters card Registration.
2. Whether in the circumstances of this case, the Tribunal was being right in striking out Paragraphs 4(b), (c), (d) and 5(a) of the Petition on the ground that they are imprecise and/or vague.
The issues identified by 25th and 26th respondents counsel are the same as the two issues above and their respective submissions are similar.
On issue 1 which is whether the issue of qualification or disqualification as presented by the appellant is a pre-election matter caught by Section 31 (5) and (6) of the Electoral Act, 2010 (as amended), the respondents counsel submitted that the only ground of qualification that is both pre and post election and can be pursued at the Election Tribunal pursuant to Section 138 (1) of the Electoral Act is the constitutional qualification in Sections 177 and 182 of the constitution, the issue of multiple registration not being a condition for qualification of a governorship candidate under the constitution is a pre-election matter and covered by Section 31 (5) and (6) of the First Schedule to the Electoral Act. They contend that an Election Tribunal has no jurisdiction to adjudicate on matters which took place before the conduct of the election, they referred to Kubor V. Dickson 4 NWLR Pt. 1345 page 534 at 584, Umar V. Labo (2013) 4 NWLR Pt. 1345 page 496 at 527 – 528 (C – H), Udeagha V. Omegara [2010] 11 NWLR Pt. 1204 page 168 at 203 – 204. They submitted that the tribunal was right in holding that the paragraphs of the petition bordering on multiple registration is an abuse of court process as the issues, the subject matter and the parties in Suit No. FHC/AWK/CS/292/2013 are the same.
On issue 2 which is whether the Tribunal was right in striking out paragraphs 4 (b), (c), (d) and 5(a) of the petition on the ground that they are imprecise and/or vague, counsel contend that the Tribunal was guided by the principles of fair hearing as a party cannot expect his adversary to controvert imprecise and vague paragraphs of his pleading. The appellant must identify the new units he is complaining about to enable the tribunal and the parties to ascertain the propriety or otherwise of the election held in the alleged new units.
On the hearing of the respondents application during pre – trial sessions, respondents submitted that the Tribunal has two options as to when to hear an objection to the petition on points of law, they referred to P.D.P. V. INEC (2012) 7 NWLR Pt. 1300 page 538 at 560 (F – H).
I have considered the issues raised by both parties, it is clear that the main complaint in this appeal is whether the Tribunal was right in striking out some paragraphs of the petition. In my view, all the issues are subsumed into this complaint. Paragraph B (1) a-m on pages 5-6 of the petition were struck out on the ground that the facts therein raised a pre – election matter over which only the High Court has jurisdiction. The gist of the averments therein is that the 25th respondent is not qualified to contest the election because he did multiple registration and gave false information on his nomination form that he has not been registered before and was therefore not qualified to contest the election. By virtue of Section 31(5) any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a Suit at the appropriate High Court to seeking a declaration that the information contained therein is false. If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election. The question is whether a person who fails to seek such a declaration from the court is precluded from presenting a petition before a tribunal to challenge the election of a person who has given false information on his affidavit on the ground that he is not qualified to contest the election. My answer is No, there is nothing in the provisions of Section 31 (5) and (6) to warrant such an interpretation. False Information on the affidavit or other document submitted by a candidate may or may not relate to the constitutional requirements of qualification. An interpretation which precludes a person who fails to seek and obtain an order of disqualification from the court from presenting a petition on the ground of non-qualification is contrary to the spirit and intention of the legislature in Section 138 (1) of the Electoral Act. The issue of qualification or non-qualification under Section 138 is not limited to constitutional requirements alone. I believe I am fortified in this view by the Judgment delivered by Dahiru Musdapher (CJN) in Suit Nos. SC/381/2011, and SC/383/2011, P.D.P. and Danial I Saror & Ors. And Hon. Gabriel Yorwua Suswan and Senator Danial I Saror & Ors on 28th November, 2011where his Lordship held as follows:
“In my view, there is no dispute whatever that the Tribunal can deal with the issue of the qualification of a candidate to contest the particular election and it does not matter whether the impediment is constitutional or otherwise. To dismiss the petition at that stage without hearing evidence against the clear wording of section 138 (1) of the Electoral Act is clearly wrong.
The issue of qualification of a candidate to contest an election is clearly within the jurisdiction of the Tribunal”.
See also Dangana V. Usman (2013) 6 NWLR Pt. 1349 page 50 at 80. Salim V. CPC (2013) 6 NWLR Pt. 135 page 500 at 524-525.
I am of the firm view that with the recent decisions of the Supreme Court in the cases stated (supra), the issue of qualification of the 25th respondent based on multiple registration as a voter cannot be classified as a pre-election matter. I say so because it is settled that election is a process which is spanning several stages and by our experience now in this country, it is not completed until it is affirmed by the last court which has the jurisdiction to adjudicate on it. See Imam V. Sheriff (2005) 4 NWLR Pt.914 page 80 at 168 (G) – 169 (C). The Tribunal was therefore wrong in striking out paragraphs B1 (a) – (m) of the Petition on the ground that they raise an issue of a pre – election matter over which only the High Court has jurisdiction to adjudicate. Issue No. 1 is therefore resolved in favour of the Appellant.
I have considered the contentions of the parties in respect of Suit No. FHC/AWK/CS/292/2013, I am of the view that the Tribunal erred in its finding that the Petition constitutes an abuse of the court process. That suit was discontinued by a notice of discontinuance dated 17th December, 2013 and filed on 18th December, 2013. This petition was filed on 20th December, 2013, see page 169 of the record. There is nothing to show that as at 20th December, 2013 when this Petition was filed, the suit was still pending. I hold the view that the appellant having filed a notice of discontinuance on 18th December, 2013 before filing his Petition on 20th December, 2013, the earlier suit was technically dead. Based on the foregoing, I resolve issue 2 in favour of the Appellant.
The first part of third issue is whether the Tribunal was right in striking out paragraphs 4 (b), (c) (d) and 5 (a) of the petition for being vague and imprecise.
It is the law that a paragraph in a pleading can not be read in isolation, in order to get the gist or the real fact being pleaded, the entire paragraphs of the pleading must be read together. See Ngige V. Obi (2006) 14 NWLR (Pt. 999) page 1 at 42. If the tribunal had read and considered the entire pleadings in paragraph 4 on pages 27 to 28 of the Petition together, as ought to be done, the Tribunal would have found that the complaint of the petitioner is that INEC did not inform them of the additional polling units until the election day thereby denying him and his party the opportunity of appointing polling agents for those units and that INEC and did not publish the particulars of those polling units. I hold the view that the petitioner cannot be expected to give detailed particulars of the additional polling units allegedly created on the Election Day when his complaint is that the particulars were not published. In any case, he pleaded 1st respondent’s documents related to the alleged additional units. I hold the view that the details relating to the alleged additional polling units or points is a matter for evidence to be adduced at trial. I cannot understand why the learned tribunal severed paragraph 5 (a) from 5 (b) on page 29 of the petition. By any stretch of imagination the pleadings in paragraph 5 can not be held to be imprecise or vague if they are read together as they ought to particularly paragraphs 5 (a) and (b). Paragraph 5 (a) alleged mathematical inconsistences and paragraph 5 (b) stated the details of the alleged inconsistences.
Having considered the entire pleadings in paragraphs 4 (b), (c), (d) and 5(a), I hold a firm view that the tribunal erred when it held that those paragraphs are imprecise and vague.
The second part of issue 3 is whether the Tribunal was right in taking the respondents’ applications at pre trial sessions. The First Schedule Electoral Act, 2010 (as amended) stipulates the procedure for hearing of objections and applications by the Tribunal paragraph 12 (5) of the Schedule provides as follows:
(5) A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition.
Paragraph 47 (1) under Motions and Applications provides thus:
47. (1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or court.
The law is settled that in the interpretation of statutes and rules of court, clear and unambiguous words or language therein should be given their ordinary grammatical meaning. The language of paragraphs 12 (5) and 47 (1) of the First Schedule to the Electoral Act are very clear and unambiguous. Paragraph 12 (5) clearly provides for a situation where a respondent has an objection to the hearing of the petition. It enjoins the respondent to state such objection in his reply and in order to ensure expeditious hearing of the petition particularly within the time stipulated by the condition, the court is enjoined to hear the objection along with the petition. In this case, the respondents in their respective replies to the petition gave notice that they intended to raise a preliminary objection to some paragraphs of the petition not to the hearing of the petition and they filed a motion on notice to raise their objections. The filing of those applications clearly took the objection out of the purview of paragraph 12 (5). By a combined reading of paragraphs 18 (2) (a), 18 (7) (d) and 47 (1), it was mandatory for the tribunal to hear the respondents’ applications during the pre – trial session. On the authority of P.D.P. V. INEC (supra), the tribunal was on a firm ground when it heard the applications of the respondents at the pre-trial sessions.
A careful reading of that case shows that the Supreme Court made the pronouncement on methods of raising an objection generally whether to the hearing of the petition or otherwise, see page 558 – 559 (G – C) of the report where Muntaka Coomassie (JSC) held as follows:
“With tremendous respect, these paragraphs of the 1st Schedule apply to the different situations and proceedings, i.e.:
(i) Where a party approaches the Tribunal with objection by way of motion, such motion shall be moved and determined during pre-hearing session except in extreme circumstances with the leave of the tribunal, that is position under the provisions of paragraph 47(1) of the 1st Schedule; and
(ii) Where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive case.
In the instant case or appeal, the respondent adopted the latter procedure by stating the objection in their reply and argued same in their final written address and the appellant also replied in its own written address.
In my view, the provisions of the two paragraphs are clear and unambiguous, and are not subject to any interpretation and I only wish to state that where the law provides two methods or procedures for doing a thing, a party can choose any of the method so provided”.
Based on the foregoing I hereby hold that the Tribunal was wrong in striking out paragraphs 4 (b), (c), (d) and 5(a) of the Petition. The Tribunal was however right in taking the Respondents application at the pre-trial session. On the whole the appeal is meritorious and hereby succeeds. The Ruling of the Tribunal delivered on 25th February 2014 is hereby set aside. All the paragraphs of the Petition struck out by the Tribunal are hereby restored. Cost of N50, 000.00 to the Appellant against the Respondents.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I Agree.
IGNATIUS IGWE AGUBE, J.C.A: I agree.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Noble Lord, M.O. BOLAJI-YUSUFF JCA and I agree entirely with the said judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned Sister, M.O. BOLAJI-YUSUFF, JCA. I agree with the reasoning and conclusions therein. I also agree with the orders made therein.
Appearances
Ezechukwu (SAN) with Chief G.C. Igbokwe and C.J. Chinwuba Esq.For Appellant
AND
Ahmed Raji (SAN) with O. Nwoye, A. Ogunleye, A. Arosanyi and K. Olofo, N. Nobis-Elendu (Mrs) for the 1st to 24th Respondents.
D.O. Ikpazu (SAN) with Vera Okonkwo (Mrs), C.B. Anyigbo for the 25th Respondent.
O.J. Nnadi (SAN) with C.N. Abiakam (Mrs) and A.U. Obidiegwu Esq. for the 26th Respondent.For Respondent
