ACTION CONGRESS OF NIGERIA & ANOR V. PEOPLES DEMOCRATIC PARTY & ORS
(2011)LCN/4829(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of October, 2011
CA/C/NAEA/228/2011
RATIO
APPEAL: WHAT AN APPEAL IN JUDICIAL PARLANCE ENTAILS
An appeal is an invitation to a higher court or judicial Tribunal to review the decision of a lower court in its judicial jurisdiction, in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower court or Tribunal arrived at a correct judicial decision. See OKEDOYIN v. AROWOLO (1989) 4 NWLR (pt.114) 172. An appeal, in judicial parlance, is therefore a complaint that a particular judicial, not administrative, decision is wrong either in law or facts, and that it should be remedied. Failure/refusal of a Tribunal to hear a motion where the decision could be either way is generally not appealable. It may be a subject of judicial review in administrative law using some other procedure of judicial review. An appeal is a continuation of the original suit rather than an inception of a new action. And it should be a complaint against a decision of a trial court. Accordingly, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See OREDOYIN v. AROWOLO (supra); NDIC V. SAVANAH BANK OF NIGERIA PLC (2001) 1 NWLR (Pt. 801) 311. PER EJEMBI EKO, J.C.A
GROUND OF APPEAL: WHETHER A GROUND OF APPEAL SHOULD CHALLENGE THE VALIDITY OF THE RATIO DECIDENDI IN THE DECISION
The trite position of law is that a ground of appeal must be against the decision and should challenge the validity of the ratio decidendi in the decision. See EGBE v. ALHAJI (1990) 1 NWLR (Pt. 128) 56. PER EJEMBI EKO, J.C.A
FUNCTUS OFFCIO: WHAT THE CONCEPT OF FUNCTUS OFFCIO ENTAILS
The concept of Functus offcio which precludes the same court or courts of co-ordinate jurisdiction from reviewing their decisions or acts has its own limitation. It is not absolute. Acts done without jurisdiction or which are ultra vires the powers of the court which are nullity are clearly outside the concept of Functus officio. In the case of LAWAL v. DAWODU (1972) 8-9 SC 83 the Supreme Court made it clear that every court, or another court of co-ordinate jurisdiction hearing a matter de novo to, has jurisdiction to set aside its own decision or Order, or decision or order made previously in the proceeding by another Judge of co-ordinate jurisdiction which decision or order were ultra vires or which were made without jurisdiction and therefore a nullity ab initio. In that circumstance, there is no need to go on appeal before such decision or order could be set aside. PER EJEMBI EKO, J.C.A
UNAPPEALED ORDER/JUDGMENT: EFFECT OF NOT APPEALING A SPECIFIC ISSUE OR ORDER ON THE PARTY AGAINST WHOM THE ISSUE OR ORDER WAS MADE
It is trite that any specific issue or order in a judgment not appealed by the party against whom the issue, finding or order is made is deemed acceptable to such party. Appeal is a grievance proceeding at the instance of the aggrieved. The court, not being an appellant, cannot enter the field and do what the party has not asked it to do. PER EJEMBI EKO, J.C.A
PRE-HEARING NOTICE: CONSEQUENCE OF THE FAILURE OF A PETITIONER TO APPLY FOR PRE-HEARING NOTICE
Where the petitioner fails to apply for pre-hearing notice, within the time envisaged, under paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 it would be taken that the Petition has been abandoned and amenable to be dismissed. UZO I. NDUKWE-ANAYANWU, J.C.A
JUSTICES:
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. ACTION CONGRESS OF NIGERIA (ACN)
2. PASTOR GEORGE UBONG IKPE – Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. HON. (BARR) EKONG SAMPSON
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): The Appellants, as Petitioners, filed their petition challenging the return of the 2nd Respondent by the Independent National Electoral Commission (INEC) as the winner of election conducted by it for the seat of Mkpat Enin State House of Assembly Constituency in the Akwa Ibom State House of Assembly. The election was conducted by INEC, 3rd Respondent, on 26th April, 2011. The Appellants filed their Petition on 19th May, 2011. The petition was originally before the Election Tribunal (Panel) No. 1. It was later moved to Panel No. 2 for hearing and determination to expedite its speedy determination.
The Petition, as earlier mentioned, was filed on 19th May, 2011. The 3rd Respondent was served on 25th May, 2011. The 1st and 2nd Respondents were respectively served on 18th June, 2011 and 20th June, 2011.
The 1st Respondent’s Reply to the petition filed on 1st July, 2011, was served on the petitioners/Appellants on 13th July, 2011. The 2nd Respondent filed his reply to the petition on 2nd July, 2011 and same was served on the Petitioners/Appellants on 7th July, 2011.
The 3rd Respondent filed their reply out of time on 8th June, 2011 and by leave of Panel No. 1 their reply filed on the said 8th June, 2011 was deemed filed and served on 21st June, 2011. They filed application for enlargement of time to file 3rd Respondent’s Reply because they failed to file their Reply within the 21 days allowed by statute. Leave granted to the 3rd Respondent was subsequently set aside by Panel No. 1.
It would appear that the Petitioners/Appellants had not, as at the time panel No. 2 took over their petition, applied for pre-hearing session and that the pre-hearing session had not commenced. It was in this state of affairs that the panel No.2 now seised of the Petition, suo moto raised two issues and asked the parties to address it on the two issues which are as follows:
“1. Whether the Tribunal has jurisdiction to proceed with the hearing of pre-trial session and the petition in view of the provisions of paragraphs 18 and 47 of the First Schedule to Electoral Act, 2010 (as amended).
2. Whether or not the Petition is to be deemed as having been Abandoned Having regard to the Provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).”
On 23rd July, 2011 the Parties agreed to exchange written address on the two issues. Parties duly exchanged written arguments. On 12th August, 2011, at the hearing on the two issues raised suo motu by the Tribunal, i.e. panel No. 2, the parties adopted their respective addresses and the Ruling was reserved to 19th August, 2011. On 19th August, 2011, the Tribunal (Panel No.2) ruled on the issues it formulated as above. It found that the Appellants/Petitioners were tardy or sloppy in prosecuting their petition; that time being of essence in election petition, it was wrong for the Petitioners or their counsel to await the direction of the Tribunal when the initiative was to be taken by the parties, particularly the petitioners, and that it was unreasonable for the Petitions to await at the pleasure of the 3rd Respondent in filing a reply when it was in the interest of the petitioners to be more diligent. At pages 267 to 269 of the main Record of Appeal the Tribunal observed:
“The factual situation of this petition is that:-
(a) The petition was filed on 19/5/2011
(b) The 1st Respondent was served with the petition on 18/6/2011
(c) The 2rd Respondent was served with the petition on 20/6/2011
(d) The 3rd Respondent was served with the petition on 25/5/2011
(e) The 1st Respondent filed a Reply to the petition on 2/7/2011 which was served on the petitioners on 13/7/2011.
(f) The 2nd Respondent filed a reply on 2/7/2011 which was served on the petitioners on 7/7/2011.
(g) The 3rd Respondent did not file a reply within 27 days.
(h) The petitioners did not file a Petitioner’s reply within 5 days of the receipt of the Replies of the 1st and 2rd Respondents.
In our view pleadings were deemed closed on 13/7/2011 when the last validly filed Respondents Reply was served on the petitioners. The Petitioners or the Respondents had seven days from that date of service to file an application for issuance of Form TF 007 to initiate the pre-trial session. That period terminated on 19/7/2011. That is the requirement of paragraph 18(1) of the 1st schedule. In the commutation of time for the filing of pleadings or other processes in an election petition, it is the time stipulated or set out in the First schedule to the Electoral Act that should be applied or used and not when such processes were actually filed by the parties.”
The petition was consequently dismissed as in the opinion of the Tribunal the petitioners were indiligent in the due prosecution of their petition. The petition was deemed abandoned. This is the decision that has prompted the filing of the two appeals – the appeal of the petitioners and the cross-appeal of the 2nd Respondent.
I will take the cross-appeal first as it purports to go to the root of the petition from which the two Appeals emanate. The gravamen of the cross-appeal is that the petition was fired 22 days after the declaration of the 2nd Respondent/cross Appellant as the winner of the poll by the 3rd Respondent. The 2nd Respondent/cross-Appellant complains, therefore, that the petition by virtue of Section 285(5) of the 1999 Constitution, as amended was statute barred. That is the basis of his preliminary objection which, according to him, he had by motion sought leave of the Tribunal to move and he was not allowed to move before the Tribunal formulated the two issues on which the Ruling thereon was delivered on 19th August, 2011. Let me make it clear and straight. This preliminary objection was not the basis, or one of the bases, of the decision or ruling of 19th August, 2011.
The cross-appeal purports to be the grouse of the 2nd Respondent/cross-Appellant against the Ruling of 19th August, 2011. The only ground of appeal complains that the Tribunal erred in law when it failed and/or refused to allow the 2nd Respondent/cross-Appellant to apply for leave to argue the Preliminary objection filed on 2nd July, 2011 which raised the issue of the petition, filed 22days after the declaration, being statute barred by virtue of section 285(5) of the 1999 constitution, as amended. Be it noted that there was no ruling or decision of the Tribunal refusing the 2nd Respondent leave to move and/or argue the alleged Preliminary objection. The alleged failure and/or refusal of the Panel to allow the 2nd Respondent to apply for leave to argue the Preliminary objection is rather more administrative than judicial.
An appeal is an invitation to a higher court or judicial Tribunal to review the decision of a lower court in its judicial jurisdiction, in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower court or Tribunal arrived at a correct judicial decision. See OKEDOYIN v. AROWOLO (1989) 4 NWLR (pt.114) 172. An appeal, in judicial parlance, is therefore a complaint that a particular judicial, not administrative, decision is wrong either in law or facts, and that it should be remedied. Failure/refusal of a Tribunal to hear a motion where the decision could be either way is generally not appealable. It may be a subject of judicial review in administrative law using some other procedure of judicial review.
An appeal is a continuation of the original suit rather than an inception of a new action. And it should be a complaint against a decision of a trial court. Accordingly, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See OREDOYIN v. AROWOLO (supra); NDIC V. SAVANAH BANK OF NIGERIA PLC (2001) 1 NWLR (Pt. 801) 311. The trite position of law is that a ground of appeal must be against the decision and should challenge the validity of the ratio decidendi in the decision. See EGBE v. ALHAJI (1990) 1 NWLR (Pt. 128) 56.
I have, painstakingly, searched the Ruling or decision of the Tribunal delivered on 19th August, 2011 to see whether the substance of the only ground of appeal in the cross-appeal forms part of the said Ruling or decision. I cannot see that in the said decision. A purported appeal against a non-existent decision is clearly an abuse of process of Court.
This cross-appeal filed on 8th September, 2011 is a process filed in abuse of process of Court. Accordingly, it will be, and is hereby discountenanced. The main appeal was filed on 9th September, 2011 against the decision/ruling of the Tribunal delivered on 19th August, 2011. It has 3 grounds of appeal. Grounds, shorn of their particulars, are as follows:
“1. The Honourable Tribunal No.2 erred in law when it invalidated and set aside the steps taken, the sittings and Orders given or made by the former Panel (Tribunal No.1.) and held, as it did, that the former panel had no jurisdiction to do so.
2. The Tribunal No. 2 erred in law when it deemed, as it did, that the petition No. EPT/AKS/HA/34/2011 had been abandoned.
3. The learned Election Tribunal erred in law when it went ahead to hear a matter transferred to it by 1st Election Tribunal and dismissed same at the time ft did.”
From those 3 grounds of appeal the Appellants, the petitioners, formulated two issues, namely:
“0.1 Whether the First Panel of the National and state House of Assembly Election Tribunal (No. 1) and the second National and State Houses of Assembly Election Tribunal (Panel No. 2) have concurrent jurisdiction and if so, whether one can safely set aside the sittings, steps taken and Orders made by the Order.
0.2 Whether the Tribunal is not bound by the Court of Appeal decision in FBN PLC v. TSOKWA (2004) 5 NWLR (PT.866) 271 held 12 and 14.”
It is apparent from the foregoing that the Appellants have abandoned the second ground of appeal complaining that the Tribunal No. 2 erred in law when it held that the petition had been abandoned, as no issue was distilled there from and argued. The said ground 2 is hereby struck out, having been abandoned.
By way of preliminary objection the 2nd Respondent attacks the competence of the Appellants three (3) grounds of Appeal. On the first ground of appeal, 2nd Respondent submits that the complaint in the said ground is only directed against obiter dictum, and not the ratio decidendi of the ruling appealed. He further submits that “whether the steps taken, the sittings and orders given by the former panel (Tribunal No.1) were set aside or not by Tribunal No.2, it would have no bearing and in fact, had no hearing at all on the fact that the Petitioners/Appellants and the Respondents did not comply with paragraph 18(1) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended) – – -” and goes on to conclude that ground 1 “is vague, general in terms and discloses no reasonable ground of appeal.” The 2nd Respondent has clearly missed the point here. The order striking out “the steps taken, sittings and orders given by the former Panel” is an appealable decision or order that is quite different and distinct from the other decision, in the same ruling, to the effect that the Petitioner/Appellants did not comply with paragraph 18(1) and (3) of the 1st Schedule to the Electoral Act 2010. The latter was not dependent on the former. The fulcrum of this objection is the merits, not validity of the ground.
Against ground 2 the attack is directed against the particulars of errors in support of the main complaint, which the 2nd Respondent’s concedes is a valid ground. The 2nd Respondent is not on firm ground here. He has failed or neglected to properly appreciate the two particulars of error thereto, which are that:
“1. The Tribunal did not properly resolve the issue in its ruling whether pleadings had closed between the parties so as to activate a pre-hearing session as contemplated in Paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended) where upon parties would have validly uphold for the issuance of Form TD 007.
2. 3rd Respondent had a pending motion for enlargement of time to file his reply which was not moved and granted by the Tribunal No, 1, before the Petition was transferred to Tribunal No.2.”
The totality of 2nd Respondent’s submission on the two particulars of error supporting ground 2 of the Notice of Appeal is, in my firm view, an argument on the merits of these particulars. What makes a particular of error valid in law is not whether it is meritorious or not.
The attack on ground 3 of the grounds of Appeal appears, also, to be directed on whether or not the ground will succeed on the merit. The 2nd Respondent has not succeeded in showing that the said ground 3 is incompetent.
On the whole, the Preliminary objection of the 2nd Respondent fairs woefully, and it is hereby dismissed in its entirety. I now go to the merits of the appeal.
In the peculiar circumstance of this Appeal it is apparent to me that the meat or substance of Issue 1 formulated by the Appellants is whether the panel No. 2, hearing the same matter previously being handled by the panel No. 1, has any power in law to set aside orders or acts previously made by its predecessor since the second Panel was of co-ordinate jurisdiction with the First panel.
The concept of Functus offcio which precludes the same court or courts of co-ordinate jurisdiction from reviewing their decisions or acts has its own limitation. It is not absolute. Acts done without jurisdiction or which are ultra vires the powers of the court which are nullity are clearly outside the concept of Functus officio. In the case of LAWAL v. DAWODU (1972) 8-9 SC 83 the Supreme Court made it clear that every court, or another court of co-ordinate jurisdiction hearing a matter de novo to, has jurisdiction to set aside its own decision or Order, or decision or order made previously in the proceeding by another Judge of co-ordinate jurisdiction which decision or order were ultra vires or which were made without jurisdiction and therefore a nullity ab initio. In that circumstance, there is no need to go on appeal before such decision or order could be set aside.
The Appellants are not totally on firm ground on this issue. That is not to say that there is nothing to the credit of the Appellants under this issue. For instance under paragraph 47(1) of the 1st schedule to the Electoral Act 2010, as amended, it is stated that no motion shall be moved and all motions shall come up at the prehearing session except in extreme circumstances with leave of the Tribunal. By this, it was not illegal or ultra vires the powers of the Tribunal to hear any application for extension of time within which a Respondent to a petition may file his reply to the petition. Paragraphs 45 (1) and 47(1) of the 1st schedule to the Electoral Act, when read together, seem to empower the Tribunal to enlarge time within which the 3rd Respondent in this petition may file their Reply to the petition. The order made at page 68 of the main Record of Appeal by the panel No.1 in favour of the 3rd Respondent to file their Reply out of time seems to be clothed with some legitimacy or made intra vires. This order, not being ultra vires, might not be a wrong exercise of discretion in law.
Panel No. 2 was functus officio and therefore had no authority in law to set it aside. Issue No. 1 succeeds in part and is partly resolved in favour of the Appellants.
Issue No.2 in the Appeal appears to flow from the third ground of Appeal that complains that the Tribunal was in error of law when it went ahead, upon taking over the Petition from the first Panel, to hear the matter and subsequently dismissing it. I have read the various submissions on this issue. The authority of FIRST BANK OF NIGERIA PLC v. TSOKWA (2004) 5 NWLR (Pt.866) 271, heavily relied upon by the Appellants, does not say that where a case was partly heard by one Judge and it was taken over by another and heard de novo, the Judge who took over the case and heard it de novo cannot dismiss it or make such Orders as the previous Judge could not have made. The Judge hearing the case or any case de novo has full authority over the case.
There is no complaint in this Appeal that when the second Tribunal Panel that took over the petition of the petitioners/Appellants and commenced hearing it de novo it refused to be bound by the case of FBN PLC v. TSOKWA (supra). Appellants seem to miss the point when they submit that “there is nothing to show that the authority of FBN PLC v. TSOKWA (supra) are (sic) not good and subsisting law and this court is enjoined to follow its earlier decision.”
This issue has not been made out. Accordingly, I resolve it against the Appellants.
I must confess, I do not understand how the Appellants handled their Appeal. The main ground for dismissing their Petition by the lower Tribunal was the Appellants’ alleged indiligent prosecution of the same. The Tribunal dismissed the Petition because the Petitioners/Appellants did not take steps to apply for pre-hearing session in compliance with paragraph 18(1) and (3) of the 1st schedule to the Electoral Act as amended. Amazingly, there is now, no Appeal against that Order. It therefore, remains extant against the Appellants. It is trite that any specific issue or order in a judgment not appealed by the party against whom the issue, finding or order is made is deemed acceptable to such party. Appeal is a grievance proceeding at the instance of the aggrieved. The court, not being an appellant, cannot enter the field and do what the party has not asked it to do.
On the whole the Appeal succeeds in part, only as regards the first issue which will not alter the substance of the decision of the lower Tribunal. In substance, the Appeal fails and it is hereby dismissed.
I make no order as to Costs.
UZO I. NDUKWE-ANAYANWU, J.C.A: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Ejembi Eko JCA. A petition is jump started by the Petitioner applying for pre-hearing session. See para 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended).
Where the petitioner fails to apply for pre-hearing notice, within the time envisaged, under paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 it would be taken that the Petition has been abandoned and amenable to be dismissed.
This was the case in the instant appeal. This appeal is therefore dismissed it being unmeritorious. The judgment of the Tribunal is affirmed.
I abide by all the consequential orders in the lead judgment.
JOSEPH TINE TUR, J.C.A: I have read the judgment delivered by my Lord Ejembi Eko, JCA and I concur.
The 1st Respondent was the last to file a Reply to the petition on 01-07-2011 which was served on the petitioners on 13-07-2011.
Thus pleadings closed on 13-07-2011. The petitioner had seven days from 14-07-2011 to have applied for the issuance of prehearing notice as in Form TF007 under paragraph 18(1) of the 1st Schedule to the Electoral Act No. 6 2011. See Akeredolu v. Akinremi (1935) 2 NWLR (Pt.10) 787 at 793-794. The 7 days expired on 20-07-2011 and not 19-07-2011 as held by the second Tribunal. Nevertheless the petitioners did not make an application under paragraph 18(1) of the 1st Schedule up to the time the 2nd Tribunal become seised of the proceedings from the 1st Tribunal.
The failure was on the ground that the 3rd respondent’s application for enlargement of time was pending for hearing and determination. There is no substance in this excuse. The 3rd Respondent was served the petition on 25-05-2011 and had 14 days to have filed a reply under paragraph 12(1) of the 1st Schedule to the Act as amended. The 14 days commenced from 26-05-2011 and expired on 08-06-2011. The petitioners did nothing.
Paragraph 18(1) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended reads as follows:
“18(1) within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever us the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.”
The petitioners had two options, namely, to apply for the issuance of pre-hearing notice as in Form TF007 within 7 days after the filing and service of the petitioner’s reply on the respondents. In that case the 2nd respondent was the last to be served the petition on 20-06-2011. The petitioners could have applied from any date between 21-06-2011 to 27-06-2011 which they failed to do.
The second option was for the petitioners to have applied within 7 days after the filing and service of the respondent’s reply. The 1st Respondent was the last to file a Reply on 01-07-2011 which was served on the petitioners on 13-07-2011. Computing from 14-07-2011 the 7 days expired on 21-07-2011. Nevertheless the petitioners did nothing.
The phrase “whichever is the case” in paragraph 18(1) of the 1st Schedule has been deleted and replaced with “as the case may be”. See Section 38(5) (d) (i) of the Electoral (Amendment) Act, No. 10 of 2011 which came into effect on 29th day of December, 2010.
The sum total of all that I have tried to show is that up to the time the 2nd Tribunal became seised of the proceedings from the 1st Tribunal to the delivery of judgment on 19-08-2011 dismissing the petition, the petitioners had not applied for pre-hearing notice as in Form TF007. The second Tribunal had no option but to dismiss the petition as abandoned under paragraphs 18(4) and (5) of the 1st Schedule.
Without jurisdiction the second Tribunal could not have entertained the petition to determine the rights of the parties. See Nyarko v. Akowuah 14 WACA 426 and Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76. There is no merit in the substantive or main appeal which I also dismiss. I abide by all the other orders made by my lord.
Appearances
M. U. Peters, Esq For Appellant
AND
David Jonathan, Esq – for 1st Respondent
Charles David Inyang, Esq – for 2nd Respondent/Cross Appellant
Jacob Akpang Esq – for 3rd Respondent. For Respondent
