ALL NIGERIAN PEOPLES PARTY & ORS. v. THE RESIDENT ELECTORAL COMMISSIONER, AKWA IBOM STATE & ORS.
(2008)LCN/2665(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of February, 2008
CA/C/NAEA/222/2007
RATIO
LEGAL PRACTITIONER – DUTY OF A LAWYER: WHAT ARE THE DUTIES OF A LAWYER
It is trite that a lawyer has an onerous duty to uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and thus shall not engage in any conduct which is unbecoming of a legal practitioner. See rule 1 of the rules of Professional Conduct for Legal Practitioners, which was made pursuant to the Legal Practitioners Act Cap 20 Laws of the Federal Republic of Nigeria, 1990, as amended.” PER IBRAHIM M. M. SAULAWA, J.C.A.
ELECTION PETITIONS – A DISMISSED PETITION: THE TIME LIMIT WITHIN WHICH AN APPEAL CAN BE BROUGHT WITH RESPECT TO A DISMISSED PETITION AND THE COURT WITH THE JURISDICTION
“It would appear that in the case of an appeal from a petition that has been dismissed which is relevant to the situation in this appeal, the petitioner would bring his appeal either to the Court of Appeal, in the case of a petition heard by election tribunal or to the Supreme Court in the case of a petition heard by the Court of Appeal, at first instance, within three months from the decision to be appealed from. This appears to be the decision of the Supreme Court in Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 179-180. In that case counsel to the appellant/cross-respondent contended that the cross-appeal having been filed on 15th February, 2005 was brought outside 21 days allowed from the delivery of the judgment of the Court of Appeal. It was submitted that the Supreme Court had no power under the Electoral Act to enlarge the time for filing of the cross-appeal notwithstanding the provision of paragraph 43(1) of the procedure for election petitions in the First Schedule to the Electoral Act 2002. Section 138(1) of the Electoral Act 2002 is exactly in pari material with section 149(1) of the Electoral Act 2006. Delivering the lead judgment Uwais, CJN at page 179-180, paragraphs G-B of the report stated thus: “It could be seen that section 138 of the Electoral Act is concerned with a situation where the decision of a tribunal or court has been given against a candidate, who has been returned as elected, declaring that such a candidate has not been validly elected. With respect, the opposite is the case in this appeal because the Court of Appeal had declared the 1st and 2nd respondents/cross-appellants validly elected. Therefore the provisions of the section have no application here. Paragraph 43(1) of the procedure for election petitions is concerned with the enlargement and abridgement of time for doing any act or, taking proceedings before a tribunal or court. When read together with paragraph 14 of the procedure for election petitions which deals with the amendment of election petition and reply, it is clear that paragraph 43(1) applies to the tribunal or court healing a at first instance, an election petition. I find support for this view in the provisions of paragraph 51 of the procedure for election petition … ” Indeed, His Lordship Chief Justice of Nigeria, found ample support for his view in paragraph 51 of procedure for election petitions which, subject to provisions of the Act, permitted determination of appeals from the Court of Appeal or the Supreme Court in accordance with the Practice and Procedure relating to appeals in the Court of Appeal or of the Supreme Court regard being bad to the need for urgency on electoral matters. He then concluded: “By the provisions of section 27(2)(a) of the Supreme Court Act Cap 424, the period prescribed for the giving of notice to appeal from a decision of the Court of Appeal to the Supreme Court in a civil case is three months. In the absence of any specific provision in the Electoral Act, 2002 as to the time for giving notice to appeal as such and in the light of paragraph 51 of the Procedure for Election Petitions, I hold that the provisions of S. 27(2)(a) of the Supreme Court Act applies to this case. The judgment of the Court of Appeal in the petition was delivered on 20th December, 2004. Three months thence ended on 20th March, 2005 but the cross-appeal herein was filed on 15th February, 2005 after obtaining leave from this Court on 9th February, 2005 to do so. That is well within three months. The preliminary objection, therefore, fails and it is dismissed. I hold that the cross-appeal was brought within time.” Consequently, in the light of the above Supreme Court decision there is no doubt that section 24(2)(a) of the Court of Appeal Act which is in pari materia with section 27(2)(a) of the Supreme Court Act and which prescribes that the period for giving notice of appeal in a final decision is three months applies to the instant appeal.” PER SULEIMAN GALADIMA J.C.A.
CONSTITUTIONAL LAW – FAIR HEARING: WHETHER A PARTY WHO NEGLECTS TO ATTEND COURT SITTING CAN COMPLAIN OF BREACH OR DENIAL OF HIS RIGHT TO FAIR HEARING
“It is trite that where a party to a suit has been accorded a reasonable opportunity of being heard and for no justifiable or cogent reasons neglects to attend the sittings of the court, he is thereafter deemed to have abandoned his case and can not thus complain of breach or denial of fair hearing. See Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 344; S & D Construction Co. v. Ayoku (2003) 5 NWLR (Pt. 813) 278; Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207; Scott Emuakpor v. Ukavbe (1975) 12 SC 41; Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; Omo v. JSC Delta State (2000) 12NWLR (Pt. 682) 444; Usani v. Duke (2006) 17 NWLR (Pt. 1009) 610 at 636 paragraphs B – C; 639 – 640 paragraphs D – B; 642 – 643 paragraphs H – B; & 649 paragraphs D – G, respectively.” PER IBRAHIM M. M. SAULAWA, J.C.A.
DEFINITION OF WORDS – BIAS: MEANING OF THE WORD BIAS IN RELATION TO COURT AND TRIBUNAL
“It is trite that bias, with particular regard to court or tribunal, is an inclination, predisposition, or preparation to determine a matter or cause in a certain pre-conceived way, without any regard to laid down principles or law. Bias may be attributable to a number of factors including corruption, vengeance, partisanship, friendship, group/membership or association. See Azuokwu v. Nwokanma (supra) at 551 paragraphs D – E per Kalgo, JSC.” PER IBRAHIM M. M. SAULAWA, J.C.A.
JUSTICES
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ALFRED EYEWUMI AWALA Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
Between
1. ALL NIGERIAN PEOPLES PARTY
2. GROUP CAPTAIN EWANG SAMPSON EWANG (Rtd.)
3. CHIEF (DR.) ESIN BASSEY NKEREUWEM Appellant(s)
AND
1. THE RESIDENT ELECTORAL COMMISSIONER, AKWA IBOM STATE
2. THE RETURNING OFFICER GOVERNORSHIP ELECTION, INEC, AKWA IBOM STATE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE 4TH – THE 125TH RESPONDENTS
126. OBONG GODS WILL AKPABIO
127. ENG. PATRICK EKPOTU
128. PEOPLES DEMOCRATIC PARTY (PDP)
129. MR. JAMES INIAMA
130. ACTION CONGRESS (AC)
131. MR. EDET IWAN UDO
132. ACTION DEMOCRATIC CONGRESS (ADC)
133. PASTOR CYRIL ITOHOWO
134. CITIZENS POPULAR PARTY (CPP)
135. OBONG SAMUEL ATANG
136. DEMOCRATIC PEOPLE’S PARTY (DPP)
137. DR. EKENG AWAM-NDU
138. LABOUR PARTY (LP)
139. OBONG (DR.) CHRIS EKPENYONG
140. PROGRESSIVE PEOPLE’S ALLIANCE (PPA) Respondent(s)
IBRAHIM M. M. SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the two separate rulings of the Governorship Election Petition Tribunal, Akwa Ibom State, holden at Uyo delivered on 25/10/07 and 07/11/07, respectively. The first ruling relates to the decision where by the lower tribunal dismissed the appellants’ petition, No. EPT/AKS/04/07, on the grounds of “a lack of preparedness” and “un seriousness of counsel to the 2nd and 3rd petitioners.” The second ruling on the other hand, relates to the decision whereby the lower tribunal struck out the 2nd and 3rd petitioners’ application dated 31/10/07, seeking an order to relist the petition hitherto dismissed by the lower tribunal on the said 25/10/07.
It is trite that on the 14/4/2007, the Independent National Electoral Commission (3rd respondent) had conducted gubernatorial elections in all the 36 States of the Federal Republic of Nigeria. In Akwa Ibom State, in particular, the 2nd and 3rd petitioners contested the said election under the platform of the 1st petitioner as Governorship and Deputy Governorship candidates. The 126th, 129th, 131st, 133rd, 135th, 137th and 139th respondents, equally contested the said election along with their deputies under the platform of the 128th, 130th, 132nd, 134th, 138th and 140th respondents, respectively.
At the conclusion of the election in question, the 126th and 127th respondents were declared winners and accordingly returned as duly elected Governor and Deputy Governor of Akwa Ibom State by the 1st, 2nd and 3rd respondents. Not unnaturally, the petitioners were dissatisfied with the results of that election. They accordingly filed their petition (No.EPT/AKS/04/07) on 14/5/07 in the lower tribunal seeking the following reliefs.
The relief sought:
1. A declaration that the 1st – 126th respondents’ failure, refusal and/or negligence to conduct the Governorship Election of April 14, 2007 and allowing genuine registered voters to cast their votes at the polling units in the 31 Local Government Areas of Akwa Ibom State as required by law was a frontal abuse and breach of the Electoral Act 2006 and a fundamental and an innate violation of the Constitution of the Federal Republic of Nigeria.
2. A declaration that the diversion, snatching, seizure and/or hijacking of the materials meant for conduct of the April 14, 2007 Governorship Election by the 18th respondents chieftains, members, supporters and/or agents for voting at private residences was a clear and disturbing violation of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999 and therefore illegal, null and void.
3. A declaration that the release of the materials meant for conduct of April 14, 2007 Governorship Election to the Chieftains, members, supporters and/or agents of the 128th respondent by the 1st – 125th respondents was a brazen and blatant violation of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999 and therefore illegal, null and void.
4. A declaration that the use of violence by the 128th respondent’s chieftains, members, supporters and/or agents during the election to harass, intimidate and scare away genuine registered voters from exercising their constitutional rights to vote at the election was a fundamental breach of the Electoral Act 2006 and a violation of the Constitution of the Federal Republic of Nigeria, 1999 and therefore illegal, null and void.
5. A declaration that denial of registered voters of their rights to vote at the election was illegal, unlawful, unconstitutional and a provocative violation of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
6. A declaration that the Governorship election held on April 14 was not conducted in compliance with the provisions of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria, 1999 and is therefore incompetent, null and void and of no consequences whatsoever.
7. A declaration that the 126th respondent was constitutionally and legally not qualified to contest and or stand as a candidate in the Governorship Election of April 14, 2007 having been indicted of fraud, embezzlement and abuse of public trust by an Administrative Panel of enquiry set up by the Abia State Government and the Government White Paper thereon.
8. A declaration that the 3rd respondent as presently constituted in Akwa Ibom State is incapable of conducting and/or guaranteeing the conduct of a free and fair election devoid of bias.
9. An order of the tribunal nullifying the purported election conducted on April 14, 2007 by the 1st and 3rd respondents in Akwa Ibom State.
10. An order of the tribunal nullifying the purported election and/or return of the 126th respondent as the winner in the purported election conducted on April 14, 2007.
11. An order of the tribunal ordering or directing the 3rd respondent to immediately conduct a free and fair Governorship Election in Akwa Ibom State in accordance with the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999 upon being served with the order of the tribunal.
12. An order of the tribunal ordering or directing the National Chairman of the 3rd respondent to reconstitute the top management of the 3rd respondent’s office in Akwa Ibom State in such a manner that will guarantee the independence, neutrality, impartiality, objectivity and fairness of the 3rd respondent in the conduct of the election and performance of its duties.
13. An order of the tribunal nullifying the candidate of the 126th respondent for the governorship election of April 14,2007 in view of his indictment by the Administrative Panel set up by the Abia State Government and the White Paper issued thereon.
Wherefore the petitioners pray that it may be determined.
(i) That the said Obong Godswill Akpabio (126th respondent) was not duly elected and/or returned at the election and that his purported election is void as per the facts contained herein and ought to be nullified.
It’s axiomatic that in the lower tribunal series of processes, including notices of preliminary objection, were filed by the respondents and accordingly deliberated upon and finally disposed off on 03/8/07. However, on 25/10/07, when the petition later came up for the continuation of the pre-hearing session, a letter endorsed by one J. U. Udom Esq. was received by the tribunal seeking an adjournment of the petition on the ground that the petitioners’ counsel, one Ndeayo Ndeayo had travelled to Abuja. Both Adeyele, SAN, counsel to the 95th and 96th respondents and E. O. Udoh Esq. counsel to the 1st petitioner, were opposed to the application. Instructively, the lower tribunal did not take kindly to the application for adjournment in question and thus held, inter alia, as follow:
On the 23rd October, this Tribunal as a result of an objection by the representative of the 1st petition with the consent of the counsel of both parties adjourned to today for continuation of the preliminary session.
The preliminary session itself commenced on the 21st August, 2007 and we have granted up to two extensions at the instance of the petitioners to conclude the hearing We are surprised that counsel to the petitioners at the last hearing who had consented to today for continuation or report of development and who had indicated the particular counsel that will be in court today has chosen to write to court to stall the pre-hearing session. In the first instance, because of the various adjournment and extension of pre-hearing sessions that had been occasioned by the petitioners, we are not inclined to grant this application. Secondly, we believe that the absence of the said counsel who had consented to today shows a lack of preparedness or failure to participate in good faith, especially as the said counsel knew that the pre-hearing session is due to end tomorrow. In fact, that the letter casually says we should adjourn to the 6th November, 2007 without any application for extension of time of the pre-hearing session before us shows the unseriousness of counsel to the 2nd and 3rd petitioners.
In the circumstance, we have no alternative than to invoke our powers under paragraph 3(11)(a) of the Practice Direction to dismiss this petition. This petition is therefore, hereby dismissed.
It was in consequence of the above ruling that the petitioners filed a motion on notice on 31/10/07, praying the tribunal for the following orders –
1. An order re-listing this petition, which was dismissed by this Honourable Tribunal on Thursday 25th October 2007.
2. An order further extending the pre-hearing session by 30 days from 26th October, 2007 to enable the tribunal hear and determine all applications which had been pending before the order of dismissal was made.
The motion on notice in question was supported by a 22 paragraphed affidavit and various annextures. It was, however, vehemently opposed by the respondents. At the conclusion of the hearing of the motion, the tribunal delivered a ruling thereupon on 07/11/07 and thereby refusing and striking out the petitioners’ application in question.
Thus, having been dissatisfied with the 2 rulings alluded to above, the petitioners have filed this appeal, which is predicated on 6 grounds of appeal and particulars thereof. It’s instructive to allude to the fact that, parties have filed and exchanged their respective briefs of argument. Most particularly, the appellants’ brief of argument was dated and filed on 14/12/07. In response thereto, the 95th and 96th respondents’ brief was dated and filed on 07/01/08. The 97th respondent’s brief dated and filed on 15/01/08 was however struck out for having been filed out of time. The appellants’ reply to 95th and 96th respondents’ brief of argument was dated and filed on 15/01/08. The said briefs were adopted by the respective counsel on 15/01/08, when the appeal came up for hearing.
It’s also noteworthy that the learned counsel to the 1st – 94th respondents, Mr. Joe Agi SAN, had informed the court on that date that he did not intend to file any brief. He however deemed it expedient to adopt the 95th and 96th respondents’ brief and urged upon the court to accordingly dismiss the appeal for being unmeritorious. The 98th – respondent also did not deem it fit to file any brief so far.
Equally, worthy of not was the bundle of papers tagged “Brief In Protest”, dated and purportedly filed on 24/12/07 on behalf of the 1st petitioner by one Emmanuel O. Udoh, Esq. It may be recalled that, on the said 15/01/08, Mr. E. O. Udoh, Esq. announced his appearance for the 1st petitioner.
The purported “Brief In Protest” was later amended impromptu by him to read “Respondent’s Brief.”
Most undoubtedly, the purported brief filed by Mr. E. O. Udoh, esq. is not only inelegantly drafted, but also a far cry from a brief of argument, within the intendment and purview of the Practice Direction No.2, 2007, which provides thus:
6(a) The brief, which may be settled by counsel, shall contain what are in the appellants view of the issues arising in the appeal.
(b) All briefs, shall be concluded with a numbered summary of the reasons upon which the argument is founded.
(c) Wherever possible, or necessary, the reasons should also be supported by particulars of the titles, dates and pages of cases adopted in the law reports, or elsewhere including the summary of the decision in such case, which the parties propose to rely upon. If necessary, reference should also be made to relevant statutory instruments, law books and their legal journals. See also Order 17 rules 3 and 4 of the Court of Appeal Rules, 2007.
It’s rather obvious, that the purported brief filed on the 1st petitioners’ behalf has not satisfied the fundamental conditions stipulated in the Practice Direction No.2, 2007, (supra) Paragraphs 1.1 – 1.8 of the purported brief are mere statements of fact to the effect that the 1st petitioner was satisfied with the result of the Gubernatorial election, held on 14/4/07 in Akwa Ibom State, and that it did not consent to the filing of the petition in question. Paragraphs 1.9 – 17, on the other hand, merely state the circumstances leading to the striking out of the petition and refusal by the lower Tribunal to relist same.
As alluded to above, the purported brief is a far cry from a brief within the contemplation of the Practice Direction, 2007 and Rules of this Court. It is devoid of any issue for determination of the appeal. What is more, no reason or decided authority, upon which a normal brief could be relied upon, was cited or alluded therein.
It is trite that the significance of a brief of argument to the administration of justice, especially with particular regard to both the Supreme Court and the Court of Appeal, can not be over emphasized. Brief writing came into being in Nigeria vide the Supreme Court Rules of 1977. See Order 9 of the Supreme Court Rules 1977 and Order 6 of the Supreme Court Rules, 1985 respectively. However, although the Court of Appeal was created in 1976, the requirement for brief of argument was not introduced until much later in 1983; as a necessary expedient to beat the tight schedules for hearing appeals from Election Petition Tribunals. See Practice Direction No.1 of 1983. See also paragraph 1.2.6 Court of Appeal (Amendment) Rules, of 1984.
One of the fundamental reasons for the introduction of brief writing in both the Supreme Court and the Court of Appeal, was to compel counsel to consider in advance the merits of the appeal he has to argue or oppose, as the case may be, therefore discouraging the pursuit of frivolous appeals or advancement of preposterous arguments. Thus, where an appeal is clearly indefensible, or the judgment appealed against is rather defective, unconstitutional, or outrageously illegal, counsel on either side has an onerous duty to state so in the brief thereof. By so doing, the appeal could be expeditiously and, where necessary, summarily disposed off. See Manual of Brief Writing in the Court of Appeal and Supreme Court of Nigeria at page 4 by Philip Nnaemeka Agu, JCA (as he then was) Fourth Dimension Publishers, 1986.
Therefore, in view of the above highlights, the purported brief filed by E. O. Udoh, Esq. on behalf of the 1st petitioner is, most undoubtedly, a useless bundle of papers that can not, by any stretch of imagination, pass the acid test of being a brief of argument, within the intendment and contemplation of the Practice Direction No.2, 2007 and Order 17 rules 3 and 4 of the Court of Appeal Rules 2007.
It ought to thus be discountenanced by this court. The purported brief in question is accordingly hereby discountenanced. The appellants’ brief of argument as alluded to above, was filed on 14/12/07 and adopted by the learned counsel thereof on 15/01/08. A total of 5 issues have been formulated therein for determination. For ease of reference, I have deemed it expedient to reproduce the 5 issues in question thus:
Issue No.1 (Based on grounds 1 and 2)
Whether the Honourable Tribunal exercised its discretion judicially and judiciously by dismissing the petition on 25th October 2007, in spite of the fact that the matter was adjourned specifically for the resolution of the dispute on the representation of the 1st petitioner and in spite of the letter from the Chambers of the petitioners’ counsel explaining the reason for his inability to be present in court.
Issue No.2 (Based on ground 3)
Whether the Tribunal was right to have granted audience to the counsel who purported to represent the 1st petitioner on 25th October, 2007, based on the notice of change of counsel filed and purportedly served that morning, which was accompanied with an affidavit in support, when the existing counsel had had no opportunity to react to the notice of change of counsel.
Issue No.3 (Based on ground 4)
Whether the tribunal was correct to have refused to grant the application to re-list the petition on the ground that the written undertaking given by the 2nd petitioner/applicant for himself and on behalf of the other petitioners was not enough to ground the petition as envisaged by rule 3(12) of the Practice Direction.
Issue No 4. (Based on ground 5)
Whether the tribunal did not exhibit bias by discrediting the letter written by the National Secretary of the 1st petitioner attached to the affidavit deposed by counsel who obtained the letter to the effect that the Party has not decided to withdraw from the petition and accrediting the mere deposition of the person who described himself as the State Secretary of the Party to the effect that the Party had decided not to pursue the petition, when the said deposition was not accompanied with any Rules or Resolution of the party to that effect.
ISSUE NO.5 (Based on ground 6)
Whether the tribunal did not exhibit further bias by ascribing suo motu previous adjournments in the matter to the petitioners, when no such issue had been raised by any of the parties and when the record of the tribunal did not support such an assertion.
On the other hand, the 95th and 96th respondents filed their brief of argument on 07/01/08 and accordingly adopted same on 15/01/08. The said brief was prefaced with a preliminary objection, to the effect that all the 6 grounds of appeal and the particulars thereof upon which the appeal was predicated are “unwieldy, unnecessarily argumentative and narrative.” A total of 4 issues have so far been raised therein for determination, to wit:
1. Whether the Honourable Tribunal exercised its discretion judicially and judiciously in dismissing the petition pursuant to its powers under paragraph 3(11)(a) of the Election Tribunal and Court Practice Direction 2007.
2. Whether the Honourable Tribunal exercised its discretion judicially and judiciously in refusing the motion to relist the dismissed petition.
3. Whether the Honourable Tribunal was right in recognising and acting on the 1st petitioner’s change of counsel.
4. Whether in the circumstances of the proceedings before the Honourable Tribunal, there is any basis for the allegation of bias against the Tribunal.
The notice of preliminary objection incorporated in the 95th and 96th respondents’ brief is to the effect thus –
1. Ground (sic) 1, 2 and 3 of the grounds of appeal are incompetent because they are purportedly challenging the decision of the honourable trial tribunal delivered on 25/10/07 where as the time within which such could be competently done as of right expired on 5/10/07.
2. The grounds of appeal all offend Order 6 rule 2(3) of the Court of Appeal Rules 2007.
I have deemed it most appropriate to first and foremost deal with the preliminary objection.
On Ground 1 of the Preliminary Objection:
The provisions of the Court of Appeal Practice Direction No. 2 of 2007, as well as section 149( 1) of the Electoral Act, 2006, were referred to the effect that the appellants’ failure to file this appeal within the 21 days period prescribed by the Electoral Act (supra) is “fatal to grounds 1 and 2 of the grounds of appeal.” See Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119 at 138 paragraphs A – C; Iloka v. Utomi (1999) 2 NWLR (Pt. 592) 583 at 587 paragraphs F-G; Balewa v. Muazu (1999) 5 NWLR (Pt. 604) 636 at 643 paragraphs C – F respectively.
It was further argued that, grounds 1 and 2 of the grounds of appeal having been filed 7 days after the statutory time limit had expired, are incompetent. The court was accordingly urged to strike them out.
Ground 3 of the grounds of appeal was also alleged to have been filed out of time and thus incompetent. The said ground 3 allegedly challenges the issue of legal representation for the 1st appellant, which the lower tribunal decided on 25/10/07. See pages 768 – 769 of the record. That, the decision of the tribunal on 07/11/07 related to the issues of whether to relist the petition and whether the pre-hearing session should be extended. Relying on the decisions in Okonkwo v. Ngige (supra); lloka v. Utomi (supra) and Balewa v. Muazu (supra), the learned counsel urged the Court to accordingly strike out the said ground 3 of the grounds of appeal.
On ground 2 of the preliminary objection:
It is alleged under this second ground that all the grounds of appeal and the particulars thereof are unwieldy, unnecessarily argumentative and narrative. See Order 6 rule 2(3) of the Court of Appeal Rules. 2007; Okorie v. Udom (1960) FSC 162 at 164; SCNLR 326. Thus, the learned counsel to the appellants urged on us to strike out all the said grounds of appeal, for being bad in law and offensive to the Court of Appeal Rules (supra). See CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48; Imam v. Sheriff & Ors. (2005) 4 NWLR (Pt.914) 80 at 132 – 133, respectively.
On the other hand, the appellants have submitted in the reply brief thereof that, the preliminary objection is “totally misconceived”.
It was argued, inter alia, that by virtue of section 51 of the Rules of procedure for election petitions contained in the First Schedule to the Electoral Act, 2006, the applicable Rules of procedure are the Court of Appeal Rules, 2007. See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 178(f) – 180 E. On that note, it was further argued that by virtue of section 24(2) of the Court of Appeal Act (which is in pari materia with section 27(2)(a) of the Supreme Court Act), the period for giving notice of appeal in c. final decision is three months and thus applicable to the instant appeal. That, being the case therefore, “the notice of appeal dated 19th November, 2007 against the final decision of the tribunal dismissing the petition on 25th October, 2007, was allegedly filed within the time statutorily prescribed and therefore valid.”
Regarding the second ground of the preliminary objection, it was contended that it is the nature of the error complained of that determines the number and length of particulars to be supplied. See Order 6, rule 2(2) of the Court of Appeal Rules, 2007. That, the respondents have a duty under the circumstances to state precisely how the grounds as formulated have either prejudiced, misled, or embarrassed them. See Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80 at 135 paragraphs B-C; Okorie v. Udom (1960) NSCC 108; Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372 at 385 paragraphs G – H; 386 paragraphs A – E.
The appellants have accordingly urged on us to over rule the 95th and 96th respondents’ objection for being frivolous and unmeritorious.
I have accorded an ams predicated, and the respective submissions of learned counsel thereon. It’s a well laid down principle of law that by its very nature preliminary objection is strictly speaking, antithetical to the intendment or objective of issues formulated in a brief for determination of an appeal before the court. This is obviously so because, it (preliminary objection) tends to foreclose or abort the appeal in limine, and where upheld, terminates the appeal. That’s to say, it automatically puts an end to the appeal without necessarily determining the rights of the parties thereto on the merits. See Odunze v.Nwosu (2007) 13NWLR (Pt. 1050) I; (2007) All FWLR (Pt. 379) 1295 at 1314 – 1315 paragraphs G – B.
In the same vein, it is rather instructive that a notice of appeal is a fundamental initiating process, and thus very crucial in the appeal process. It is akin to a writ of summons in ordinary civil actions. Thus, where a notice of appeal turns out to be defective or incompetent in any respect, and for whatever reason, there is no valid appeal and the court becomes devoid of any jurisdiction to determine the appeal. In such a circumstance, the appeal is liable to be struck out or dismissed, as the case may be. See Odunze v. Nwosu (supra) at 1315 paragraph D.
I have deemed it expedient to reproduce in verbatim the said grounds 1, 2 and 3 of the grounds of appeal contained at pages 799 – 804 of the record for ease of reference, thus –
1. The honourable and learned tribunal failed to exercise its discretion judicially and judiciously and thus erred in law when it proceeded to dismiss the entire petition on 25th October 2007.
2. The honourable and learned tribunal misdirected itself on the facts when it gave its reasons for refusing the application for an adjournment of the petition on 25th October, 2007 as follows:
In the first instance, because of the various adjournments and extension of pre-hearing sessions that had been accessioned by the petitioners, we are not inclined to grant this application. Secondly, we believe that the absence of the said counsel who had consented to today shows a lack of preparedness or failure to participate in good faith especially as the said counsel knew that the pre-hearing session is due to end tomorrow. In fact that the letter casually says we should adjourn to the 6th November 2007 without any application for extension of the pre-hearing session before us show the unseriousness of counsel to the 2nd and 3rd petitioners.
3. The honourable and learned tribunal erred in law when it held in its ruling delivered on 7th November, 2007 as follows:
It is noteworthy that the 1st petitioner had on the 25th October, 2007 in conformity with the provisions of Order 12 rule 38(1) of the Federal High Court (Civil Procedure) Rules 2000 filed a notice of change of counsel before the tribunal together with an affidavit which was served on the erstwhile counsel acting for the 1st petitioner. We have noticed that no reference was made by the counsel Mr. Adetola – Kaseem, SAN to this development even though he acknowledge in court while, moving this application that they are aware of the said notice. The counsel did not react to the notice after being (sic) served and Mr. Emmanuel Udoh who filed the said notice has been granted audience to so appear as counsel to the 1st petitioner.
A careful perusal of the records of proceedings of the lower tribunal reveals that the notice and grounds of appeal were undoubtedly filed therein on 22/11/07. Both grounds 1 and 2 of grounds of appeal clearly complain against the tribunal’s ruling delivered on 25/10/2007. Instructively, paragraph 1 of the Practice Direction No.2, of 2007 is to the effect that-
“1. The appellant shall file in the Registry of the tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.”
Thus, by virtue of the said paragraph 1 of the Practice Direction No.2 of 2007 (supra), it’s rather obvious that the appellants’ notice of appeal and grounds 1 and 2 were filed outside the 21 days period.
However, a critical view of the provisions of section 149 of the Electoral Act 2006, under which the Practice Direction, 2007 was made, specifically relates to an appeal against a decision of the Election Tribunal that the candidate so far returned as duly elected was not validly elected and that he shall remain in office pending the determination of the appeal. Contrarywise, the present appeal deals with a situation whereby the appellants’ appeal was summarily dismissed, in limine, without the petition being heard on the merits.
In the circumstances, a recourse has to be made to the provisions of paragraph 51 of the Rules of Procedure for Electoral Petition, as contained in the First Schedule of the Electoral Act, 2006, which is to the following effect:
51. Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or the Supreme Court as the case may be regard being had to the need for urgency on election matters. See also the authoritative decision of the Supreme Court in the case of Buhari v. Obasanjo (2005) 13NWLR (Pt. 941) 1 at 179 paragraphs G – H, thus:
It could, be seen that section 138 of the Electoral Act [which is in pari materia with section 149 of the Electoral Act 2006] is concerned with a situation where the decision of a tribunal or court has been given against a candidate, who has been returned as elected, declaring that such a candidate has not been validly elected with respect, the opposite is the case in this appeal because the Court of Appeal had declared that the 1st and 2nd respondents/cross-appellants were validly elected. Therefore the provisions of the section have no application here.
Most aptly, the apex court held further at page 180 paragraphs C – E thus:
By, the provisions of section 27(2)(a) of the Supreme Court Act, Cap 424, the period prescribed for the giving of notice of appeal from a decision of the Court of Appeal to the Supreme Court in a civil case is three months. In the absence of any specific provision in the Electoral Act, 2002 as to the time for giving notice to appeal as such and in the light of paragraph 51 of the procedure for election petitions. I hold that the provisions of section 27 (2) (a) of the Supreme Court Act applies to this case.
Thus, in the light of the above authoritative dictum of the Supreme Court, there is no doubt that the provisions of section 24(2) of the Court of Appeal Act (which is in pari materia with section 27(2)(a) of the Supreme Court Act (supra) applies to the instant appeal. The said section 24(2) of the Court of Appeal Act provides as follows-
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
With respect, to hold otherwise, in the light of the above cited authoritative and eloquent decisions of the Supreme Court and statutory provisions, would in my view amount to a sheer absurdity.
And I so hold.
Ground 2 of the preliminary objection is to the effect, that all the grounds of appeal are unwieldy, unnecessarily argumentative and narrative. This court has been urged to accordingly strike them out. As alluded to above, the appellants have filed a total of six grounds of appeal along with the notice of appeal. I have critically perused each and everyone of them. Certainly, with the exception of ground 1, the rest of the 5 grounds of appeal are each preceded by a lengthy verbatim quotation from decisions of the tribunal. However, notwithstanding the fact that the grounds of appeal appear to be some what unwieldy, argumentative and even narrative as rightly argued in the 95th and 96th respondents’ brief, it’s possible with, some diligence, to glean the complaints contained therein. The method adopted by the appellants’ learned counsel in drafting the grounds of appeal in question may admittedly be some what awkward. The court however has a duty to ensure that the appellants are not denied their fundamental right to fair hearing, as cherishingly enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999. It is trite that the fundamental objective of grounds of appeal is to notify the other party of the nature of the case he would meet in the appellate court. Thus, once what the appellant is appealing is discernible, it may not be necessary or desirable to strike out the grounds of appeal thereof, as doing so may amount to denial of his right of appeal and vis-a-vis fair hearing, as duly and cherishingly enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
The cherishable trend in the Nigerian courts has been to ensure that substantial justice [as against technical justice] is done to the parties at all times. See Ogboru v. Ibori (2006) 17 NWLR (Pt. 1009) 542 at 574 paragraphs G-H; 585 -586 paragraphs B-D; Ogunbi v. Kosoko (1991) 8 NWLR (Pt.21O) 511; Ekanem v. Akpan (1991) 8 NWLR (Pt.211) 616; Ezegbu v. FAT.B. Ltd. (1992) 1 NWLR (Pt.220) 699; Panache Communications Ltd. v. Aikhomu (1994) 2 NWLR (Pt.327) 420, respectively.
In the light of the above postulations, I hereby hold that the 95th and 96th respondents’ preliminary objection lacks merit and same is hereby over ruled.
Having thus over ruled the 95th and 96th respondents’ preliminary objection, I now proceed to determine the appeal on the merits thereof. Having accorded a critical consideration upon the respective brief of the learned counsel, I am inclined to appreciate that the issues raised therein are not mutually exclusive. However, it must be reiterated that the four issues formulated in the 95th and 96th respondents’ brief are, much more concise and articulated than the five issues raised in the appellants’ brief. The appellants’ issues are apparently unwieldy and verbose. Not surprisingly, the formulated issues in the appellants’ brief, especially issue 2 – 5 undoubtedly are characteristically a fall out of a bad drafting skill. It’s a fundamental doctrine that issues for determination raised in a brief of argument must be precise and devoid of verbosity, irrelevant complexity and ambiguity for ease of comprehension of the matters to be determined in the appeal. See Guda v. Kitta (1999) 12NWLR (Pt. 629) 21.
It is also the cardinal rule that, what counsel should normally argue in brief of argument thereof are the issues raised therein. Thus, grounds of appeal are not argued in brief. However, such issues must relate to the grounds of appeal, otherwise they are liable to be struck out for being incompetent. See Oceanic Bank International Ltd. v. Chitex Ind. Ltd. (2001) FWLR (Pt. 4) 678 at 689 paragraph H; Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 at 165 -166 paragraphs C – C; Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563. Animashaun v. U. C. H. (1996) 10NWLR (Pt. 476) 65 respectively.
The above postulations notwithstanding, I have deemed it expedient to mutatis mutandis, adopt the five issues formulated by the appellants for the purpose of determining this appeal. After all, it is their own appeal. However, in the course of the determination of the appeal, both issues 4 and 5 will be determined together.
Issue No. 1.
This issue raises the question of whether the lower tribunal had judicially and judiciously exercised the power thereof in dismissing the petition on 25/10/2007. The submission of the appellants’ learned counsel on this issue is inter alia, to the effect that the intervening event of 23/10/07 which made it impossible for the pre-hearing session to continue on that day was not the making of the appellants or their counsel. That, the lower tribunal’s failure to consider that fact and the resultant refusal to grant the adjournment sought by the appellants’ counsel had amounted to “a most injudicious exercise of discretion.” See Ahmed v. Trade Bank Plc (1996) 3 NWLR (Pt. 437) 445 at 450 paragraphs F-G; U.B.A. Plc v. Akparabong Community Bank (Nig.) Ltd. & Anor. (2005) 12 NWLR (Pt. 939) 232 at 278 paragraphs A – C; General & Aviation Services Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) 50 at 90 – 91 paragraphs F – C, respectively.
On the issue of the alleged appellants’ failure to apply for the pre-hearing session, it was submitted most vehemently by the learned counsel, inter alia, that –
The honourable tribunal was most unrealistic in its expectation, having regard to the prevailing circumstances. It was not anticipated that the pre-hearing session would exceed the 26th day of October 2007 earlier Schedule (sic), but for the intervention of strangers to the proceeding on 23rd October 2007 … It is finally submitted that non filing of the application ought not to be a ground for refusing the application for an adjournment and dismissing the entire petition.
On the other hand, the 95th and 96th respondents’ submission on the issue No.1 is, inter alia, to the effect that the exercise of judicial discretion is determined by the dictate of justice and not private, whimsical opinion, humour or sentiment. See Oyeyemi v. Irewole LG (1993) I NWLR (Pt. 270) 462 at475; 495 paragraph H.
The provisions of section 148 of the Electoral Act 2006, as well as paragraph 3(a) of the Practice Direction, 2007 were referred to, to the effect that the chairman of the tribunal has the discretion to extend the 30 days pre-hearing session. That, the pre-hearing session was commenced on 21/8/07. But the period was extended twice i.e. on 20/9/07 and 28/9/07 at the instance of the petitioners. See page 762 of the record.
It was further argued that contrary to the appellants’ contention, the proceedings of the tribunal of 23/10/07 and what transpired on 25/10/07 reasonably justified the exercise of tribunal’s discretion against any further adjournment and the [resultant] dismissal of the petition. That, in the circumstances, there is no basis for the appellants’ invitation to interfere with the tribunal’s exercise of discretion thereof. See Chigbu v. Tonimas (Nig.) Lid. (1999) 3 NWLR (Pt.593) 115 at 142 paragraphs C – E. That, the cases cited by the appellants are ordinary civil cases, and thus not on all fours with the instant case, which is sui gerneris, as such time is of the essence in the disposal thereof.
It is an established cardinal principle of law that the very essence of the proper exercise of judicial discretion is deeply rooted in the believe that it be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humour, or sentimental disposition. See Oyeyemi v. lrewole Local Govt. (supra) at 475 paragraph it, in which Nnaemeka- Agu, JSC, cited with approval Rooke’s Case (1598) 5 CO. REP. 995 and Sharpe v. Wake Field (1891) AC 173 HL per Lord Halsbury at page 173, respectively.
In Rooke’s case (supra), the celebrated Coke Well had aptly defined judicial discretion as-
“a science of understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do to their wills and Private affections…”
Thus, compliance with well laid down rules, reason and forensic logic could, rightly in my view, be said to be veritable hand maids for a proper exercise of a judicial discretion for the sole purpose of attainment of justice to the parties. See Oyeyemi v. Irewole Local Govt. (supra) at 477 paragraphs B – D per Nnaemeka – Agu, JSC.
I have had the privilege of traversing, albeit painstakingly, the entire 811 page record of proceedings of the lower Tribunal vis-a-vis the respective briefs of argument of the learned counsel. The controversial ruling delivered by the lower tribunal on 25/10/07 is contained at pages 771 – 773 of the record. I have herein above reproduced in verbatim a significant portion of the said ruling.
Contrariwise, the appellants, in the reply brief thereof have vehemently debunked the allegation of the 95th and 96th respondents in paragraphs 6.1.4 of the brief thereof regarding the dates of commencement and extension of the pre-hearing session. According to the appellant:
2.1 The statement in paragraph 6.1.4 of the 95th and 96th respondents’ brief of argument is false and therefore misleading in that as can be seen clearly from the record of appeal no proceeding took place on 21/8/07 and no extension of the pre-trial session was granted by the tribunal, on 20/9/2007.
As it would appear from the record of proceedings of the tribunal, pages 1-710 thereof relate to the processes including motion papers, memoranda of appearance, written addresses of counsel, affidavits etc. On the other hand, pages 711 – 797 exclusively relate to the actual day-to-day proceedings (including rulings) of the tribunal. Where as, pages 798 – 811 relate to notice of appeal filed in the lower tribunal’s Registry on 22/11/07. It’s rather obvious that the tribunal, as revealed by the record, did not sit on the alleged 21/8/07. The only evidence of the tribunal’s sitting in the month of August 2007 in respect of the instant petition could be found at pages 746 748 of the record. And that was on 03/8/07. As far as the record is concerned, from the 07/06/07, when the petition was first mentioned, to 07/11/07, when the ruling refusing to relist the hitherto dismissed petition was delivered, the tribunal had sat on a total number of 15 different dates as follows – (1) 07/6/07; (2) 16/7/07; (3) 18/7/07; (4) 20/7/07; (5) 25/7/07; (6) 27/7/07; (7) 03/8/07; (8) 05/9/07; (9) 20/9/07; (10) 20/9/07; (11) 28/9/07; (12) 23/10/07; (13) 25/10/07; (14) 06/11/07; (15) 07/11/07, respectively. Thus, the holding of the tribunal at page 784, second to the last lines, of the record to the effect that –
“The pre-hearing session itself was commenced on the 21st August, 2007…”
is most undoubtedly erroneous, to say the least, with due respect to the lower tribunal.
Nonetheless, there is an ample evidence on the face of the record to establish that the pre-hearing session in the petition was in fact due to have come to an end on 26/10/07. There is no doubt that the pre-hearing session could not have been commenced later than the 05/9/07. Thus, lending a credence to the tribunal’s summation at page 785 of the record that –
“As the counsel to the 15th respondent has rightly said the pre-hearing session is due to be completed by the 26th October, 2007 which is tomorrow.”
Paragraph 3(9) of the Practice Direction 2007 provides thus –
(9) The pre-hearing session or series of pre-hearing sessions with respect to any petition shall be completed within 30 days of its commencement, and that the parties and their legal practitioners shall co-operate with the tribunal or court in working within this time table. As far as practicable, pre-hearing sessions shall be held from day to day or adjourned only for purposes of compliance with pre-hearing session. Unless extended by the chairman or presiding justice.
By virtue of the above provisions, the lower tribunal chairman’s discretion to grant an extension for the pre-hearing session beyond the 30 days time limit is no longer in doubt. It is evident that on the said 05/9/07, Chief G. A. Adetola Kazeem, SAN, learned counsel to the petitioners vehemently opposed Mr. Joe Agi SAN’s (learned counsel to the 1st – 95th respondents) application, thus-
Kazeem, SAN: I am opposing the application for an adjournment as I believe that there must be a position taken on the papers before the coul1. I do not think it is right for counsel to just ask for the adjournment. Having regard to the nature of the proceedings which the law states as being urgent, I will be opposed to the application.
On that note, the tribunal accordingly ruled thus –
We are inclined to agree with the learned counsel to the petitioners that in view of the nature of election petition and the time since this particular petition was filed it would be improper to grant an application for adjournment on a flimsy excuse as provided by the 1st – 95th respondents counsel.
… We are therefore not inclined to grant the application for adjournment and the 1st – 95th respondents’ counsel is at liberty to move his application filed on 21st August, 2007 which had been pending before this tribunal and was slated for today and to bring any other applications which he desires to do in accordance with the rules of this tribunal.
The 1st – 95th respondents counsel thereby withdrew his application dated 10/8/07 but filed on 21/8/07 seeking an extension of time for a pre-hearing conference. The application was accordingly struck out by the tribunal.
As could be gleaned from the record, on 23/10/07, the 1st petitioner, ANPP, was recorded to have been represented by one Sir Robilo Eyo, the State Party Chairman. Prior to that date, none of the 3 petitioners had ever put a personal appearance except through their counsel. As recorded at pages 764 – 765 of the record, the said Sir Robilo Eyo had interrupted the submission of Kazeem, SAN and accordingly informed the court that-
“As a party, we did not give instruction to any body to file an action on our behalf as we do not intend to contest the result of the election.”
In consequence of the above far reaching allegation by the alleged State Chairman of the 1st petitioner, the tribunal, inter alia, held thus-
We are in view of this development inclined to and do hereby give the petitioners 48 hours to put their house |in order and to file any necessary papers they might deem appropriate to enable us regularize the position of the petition. This petition is hereby adjourned to the 25th October 2007 for a report on the development or continuation of the pre-hearing session.
On the said 25/10/07, one Emmanuel O. Udo Esq. also appeared as counsel for the 1st petitioner. Jacob Akpong Esq. and Chief Duro Adeyele with G A. SAN Umoh Esq. appeared for the 1st – 94th respondents, and 95th – 96th respondents, respectively. No counsel appeared for the 2nd and 3rd petitioners. Akpong Esq. then informed the tribunal that he had received a letter from the petitioners’ counsel seeking an adjournment of the petition. However, both Adeyele, SAN and Udoh, Esq vehemently objected to the application for further adjournment of the petition. Consequently, the tribunal refused the application and accordingly dismissed the petition under paragraph 3(11)(a) of the Practice Direction 2007 (supra). From the above scenario, it’s rather obvious that the tribunal was justified in dismissing the petition on 25/10/07. It’s instructive to note that the absence of the 2nd and 3rd petitioners’ counsel from the tribunal on the said 25/10/07 was most reprehensible, to say the least. Bearing in mind the tribunal’s order giving the petitioners 48 hours within which “to put their house in order and make a report thereupon, the 2nd and 3rd petitioners’ counsel G. A. Adetola Kazeem, SAN ought to have either personally appeared or at-least sent any of his junior, colleagues, to the tribunal on the said 25/10/07. What is more, the fact that both the 2nd and 3rd petitioners had never appeared in the tribunal ever since the petition was filed, clearly indicated that they have very little if any interest in the fate or out come of their petition.
Contrariwise, the 1st petitioner from all indication had decided, for reasons best known thereto, to take it’s destiny into it’s hands by disassociating itself from the petition and leaving the 2nd and 3rd petitioners to their fate. Hence, in the light of the above postulations, there are cogent reasons to believe that the lower tribunal had exercised its discretion in dismissing the petition judicially and judiciously. Thus, my answer to issue No.1 is in the affirmative, and same is resolved in favour of the 95th and 96th respondents.
Issue No.2
This issue raises the question of whether the tribunal was right in granting audience to Emmanuel O. Udoh, Esq. to represent the 1st petitioner on 25/10/07 based on the Notice of change of counsel filed that morning. It’s instructive that the 95th and 96th respondents’ issue No.3 relates to the appellants’ issue No.2 under discussion. The notice of change of counsel, dated 25/10/07 could be found at page 682 of the record. The submission of the appellants’ learned counsel on the issue is to the effect that both the 1st appellant and the Chairman thereof did not instruct the appellants’ counsel, as such they can not change same. The learned counsel cited and relied upon Order 12 rule 38(1) of the Federal High Court (Civil Procedure) Rules.
It was argued that the procedure adopted by the Tribunal amounted to a denial of the fundamental right of fair hearing to “the briefing party” and “the counsel briefed”. See Savannah Bank of Nigeria Plc & Anor. v. Bao Motors (Nig.) Ltd. (2004) 7 NWLR (Pt. 873) 579 at 595 paragraphs G-H; 596 paragraphs A-E; Usani v. Duke (2006) 17 NWLR (Pt. 1009) 610 at 648 paragraphs E-H; 649 paragraphs A-D, respectively. The court has been urged to accordingly strike out the “so called notice of change of counsel”, and all other processes and proceedings based thereupon.
Submitting on the issue, the 95th and 96th respondents’ counsel contended, inter alia, that the alter ego of the 1st petitioner, i.e. the Akwa Ibom State Chairman Sir Robilo Eyo, the Vice – Chairman, and Secretary thereof had demonstrated in various ways that the 1st petitioner did not authorise the filing of the petition and thus disassociated their party therefrom. It was also contended that the notice of change of counsel was duly served on the erstwhile counsel on 25/10/07 by 11:55 am. That, under Order 12 rule 38(1) of the Federal High Court, the change of counsel is a matter of right. The court is thus urged to resolve the issue in the affirmative and dismiss ground 3 of the grounds of appeal.
It’s evident from the record at page 768 that on 25/10/07, Emmanuel O. Udoh, Esq. appeared and informed the lower tribunal that he had filed a notice of change of counsel for the 1st petitioner. He said that he had complied with the provisions of Order 12, rule 38(1) of the Federal high Court (Civil Procedure) Rules (supra), having served the petitioners’ former counsel with the copy thereof at 11:55 am that morning. Thus, the tribunal having been satisfied with that submission proceeded with the pre-hearing session, leading to the ultimate dismissal of the petition as a result of the absence of the petitioners and counsel thereof.
The provisions of Order 12, rule 38(1) of the Federal High Court (Civil Procedure) Rules (supra), which are applicable to the Tribunal, are to the following effect-
38(1) A party to any cause or matter who sues or defends by a counsel, may change his legal practitioner without an order for that purpose but unless and until notice of the change is filed and copies of the notice are served on every other party to the cause or matter and on the former legal practitioner, the former legal representative shall be considered the legal practitioner of the party until the final conclusion of the cause or matter.
In view of the circumstances surrounding the case, and the provisions of the law referred to above, there is every reason to believe that the tribunal was justified in allowing E. O. Udoh, Esq. to appear for the 1st petitioner on 25/10/07 and subsequent dates in question for obvious reasons. One, by virtue of the events of 23/10/07 and the resultant order directing the petitioners to within 48 hours put their house in order and report back to the tribunal, it goes without saying that the filing of the notice of change of counsel on behalf of the 1st petitioner was not unexpected. Two, that there is a satisfactory proof to the effect that the 2nd and 3rd petitioners counsel was duly served with the said Notice of change of counsel at 11:55am on 25/10/07. Three, the reasons given by the 2nd and 3rd petitioners’ counsel for his absence were not compelling or exceptional enough to have warranted the tribunal to grant a further adjournment, especially in view of the fact that the petition had been pending for at least five months. Four, considering the circumstances that warranted the tribunal to adjourn the petition to 25/10/07, the petitioners’ counsel’s absence on that date was rather disrespectful and a clear testimony of the fact that he was not seriously committed to seeing to the expeditious completion and determination’ of the petition. Five, the unremitting absence of the 2nd and 3rd petitioners from the tribunal ever since the petition was filed therein also clearly confirms that they were not seriously committed to pursuing the diligent and expeditious determination of their petition.
Notwithstanding the fact that the 2nd and 3rd petitioners have the right to be represented by counsel of their own choice, the fact that they had never showed up in the lower tribunal lends credence to the fact that they have very little if any concern for the out come of the petition thereof. Invariably, it would be highly preposterous for them to now complain of having been denied the right to fair hearing.
It is trite that where a party to a suit has been accorded a reasonable opportunity of being heard and for no justifiable or cogent reasons neglects to attend the sittings of the court, he is thereafter deemed to have abandoned his case and can not thus complain of breach or denial of fair hearing. See Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 344; S & D Construction Co. v. Ayoku (2003) 5 NWLR (Pt. 813) 278; Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207; Scott Emuakpor v. Ukavbe (1975) 12 SC 41; Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; Omo v. JSC Delta State (2000) 12NWLR (Pt. 682) 444; Usani v. Duke (2006) 17 NWLR (Pt. 1009) 610 at 636 paragraphs B – C; 639 – 640 paragraphs D – B; 642 – 643 paragraphs H – B; & 649 paragraphs D – G, respectively.
In the instant case, it is rather so obvious that the 2nd and 3rd appellants and their counsel failed to appear in court on 25/10/07 for a report on the settlement of the vexed issue of representation of counsel and also for the continuation of the pre-hearing session that was bound to end the next day. There was no cogent reason for their absence before the tribunal on that date. The tribunal, from the record, had creditably accommodated and accorded every opportunity to the 2nd and 3rd appellants and counsel thereof to prosecute their petition through out the five months it lasted, but they regrettably failed to utilize same.
What’s more, its evident from the Record that service of the notice of change of counsel had been effected upon the 2nd and 3rd appellants’ learned counsel. Thus, by virtue of the provisions of Order 12 rule 38(1) of the Federal High Court (Civil Procedure) Rules (supra), the tribunal was right in granting audience to Emmanuel O. Udoh, Esq. to represent the 1st petitioner on the 25/10/07 in question. My answer to issue No.2 is in the affirmative and thus resolved in favour of the 96th and 90 respondents.
Issue NO.3:
This issue raises the question of whether the tribunal was right in refusing the appellants’ application seeking to relist the petition dismissed on 25/10/07. The issue was distilled from ground 4 of the ground of appeal. The 95th and 96th respondents’ issue No.2 relates to this issue.
The argument of the 2nd and 3rd appellants’ counsel on the issue is to the effect, inter alia, that by virtue of the provisions of paragraph 3 sub-paragraph (12) of the Election Tribunal And Court Practice Direction, 2007 as well section 144(1) of the Electoral Act, 2006, it was absurd for the tribunal to hold, as it did, that the 2nd petitioner’s written undertaking on behalf of himself and other petitioners was not enough to ground the petition. The learned counsel argued that a statute ought not to be interpreted to produce an absurd result. See Udoh v. Orthopaedic Hospitals Management Board (1993) 7 NWLR (Pt. 304) 139 at 149 paragraph E; Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 591 paragraphs. G – H; Broad Bank Of Nig. Ltd. v.Alhaji Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt. 912) 434 at 457 paragraph H; 458 paragraphs A – C; respectively. The court is urged to thus hold that the undertaking given by the 2nd appellant in support of the motion to relist the petition meets the requirements of the rule and the law.
On the other hand, the 95th and 96th respondents’ submission regarding this issue is to the effect, inter alia, that the application seeking to relist the petition was ab initio incompetent and should have been struck out even on that ground alone. That, its only a cause that has been struck out that can be relisted and not one dismissed. And that for any dismissed matter to be relisted, the order dismissing same must first and foremost be set aside. The court is urged to accordingly hold that the tribunal had rightly struck out the petition. Secondly, it was further submitted, inter alia, that the tribunal rightly exercised its discretion judicially and judiciously in refusing the application on the ground that the appellants did not meet the conditions precedent to the exercise of the discretion in their favour. See paragraph 3(12) of the Election Tribunal And Court Practice Direction, 2007 (supra). It was argued that the Tribunal’s interpretation of the express provision of the Practice Direction (supra) requiring all applicants to sign an undertaking can not lead to any absurdity. That, its clear from the record that the 1st appellant through the Chairman and Secretary thereof that has disclaimed any representation by the other petitioners. Thirdly, it was also contended that the tribunal’s refusal to relist the dismissed petition was not based on the issue of undertaking alone. See page 796 of the record last paragraph. The court is thus urged to answer issue No.3 in the affirmative.
It is trite that by virtue of the provisions of paragraph 3 sub paragraph (11) of the Electoral Tribunal And Court Practice Direction, 2007 (supra), where a party or his legal practitioner fails to attend the pre-hearing session or obey any scheduling or pre-hearing order or is substantially unprepared to participate in the session, the tribunal or Court as the case may be, has the discretionary power to either dismiss the petition in limine, or enter judgment against the defaulting respondent.
In the present case, its obvious that the lower tribunal had exercised its power to dismiss the petition on 25/10/07 as vested thereupon in paragraph 3(9) of the Election Tribunal And Court Practice Direction, 2007 (supra). As alluded to above, the Tribunal’s ruling delivered on 07/11/07 refusing the application to relist the dismissed petition is contained at pages 787 – 797 of the record. I have accorded an ample albeit critical regard upon the circumstances surrounding the application, the affidavit in support thereof, the submissions of the learned counsel and vis-a-vis the decision of the tribunal thereupon. It is rather obvious that the tribunal based its decision to refuse the application seeking to relist the dismissed petition on two grounds. The 1st ground could be found at page 796 of the record wherein the tribunal held thus:
More over, we are unable to appreciate the preparedness of the petitioners/appellants to be diligent in this proceeding if after more than five months since this petition was filed they can still make an application for further extension of time by 30 days for the continuation of the pre-hearing session. We also take notice of the fact that in the affidavit of the applicants they have failed to mention at whose instance the adjournments taken on the 20th September, 2007 and 29th September, 2007 was.
In fact out of the eleven adjournments made on record in this petition since the 11th July, 2007, six were either at the instance of the petitioners or occasioned by them.
I think, I can not concede more to the above sterning revelation by the tribunal. Most undoubtedly, the tribunal can not in any way be faulted in making the above observation against the appellants. The record no doubt speaks for itself and the parties, nay this court, are bound by it. Simply put, the 2nd and 3rd appellants have failed to adduce cogent and exceptional reasons that ought to have warranted or compelled the lower tribunal to exercise the discretionary power thereof in their favour. Thus, even on that ground alone, the application seeking to relist the dismissed petition ought to have been definitely dismissed by the lower tribunal.
However, regarding the 2nd ground, I think I am on the horns of dilemma in appreciating, let alone upholding, the view that the application for the relisting of the dismissed petition comes within the purview of the provisions of paragraph 3(12) of the Election Tribunal and Court Practice Direction, 2007 (supra). For case of reference, I have deemed it expedient to reproduce the provisions of paragraph (12) (supra) as follows-
“(12) Any judgment given under sub paragraph (11) above may be set aside upon an application made within 7 days of the judgment (which shall not be extended) with an order as to costs of a sum not less than N20,000. The application shall be accompanied by an undertaking to participate effectively in the pre-hearing session jointly signed by the applicant and the legal practitioner representing him.”
In order to fully comprehend and appreciate the intendment of the provisions of paragraph 3(12) (supra), both sub-paragraphs (11) and (12) must be read together. The provisions of paragraph 3(11) (supra) have been reproduced in verbatim above. Firstly, a calm but dispassionately critical appraisal of the said paragraph 3(11) (supra) would reveal that paragraph 3(11)(a) relates to a situation whereby a petition is dismissed on ground of a petitioner’s non attendance (non appearance), disobedience, or un-preparedness to participate in the pre-hearing session. Thus, it affects only the petitioner. The Tribunal simply delivers a ruling [and not judgment) dismissing the petition, in limine. This is so because it would be unjust to the respondent to determine the petition in the absence of the petitioner. The present case falls within this category.
Secondly, paragraph 3(11)(b) (supra). on the other hand, envisages a situation where by the respondent happens to be the defaulting or recalcitrant party. Justice demands that the petitioner shall be entitled to judgment in limine. This is akin to what is generally known in the Civil Procedure Rules and Practice of the High Courts as judgment in default of appearance or default judgment, for short. See Order 15 Rule 1- 8 of the Federal High Court (Civil Procedure) Rules (supra); Civil Procedure in Nigeria, by Fidelis Nwadialo, SAN; 1990, at page 372.
It is rather obvious that paragraph 3(12) (supra) applies only to a situation whereby a judgment is entered against a defaulting respondent as expressly provided in paragraph 3(11)(b) (supra). That’s, to say, paragraph 3(12), supra does not apply to the present case, which falls within the first category i.e. paragraph 3(11)(a) supra. This is obviously so, because the petition having been dismissed in pursuant to the said paragraph 3(11)(a), supra, the tribunal has become functus officio, thus lacking the vires or power to set aside the order of dismissal, talkless of relisting the dismissed petition in question.
A typical example of the effect of an order of dismissal of a petition in limine, can be traced to the provisions of the Election Tribunal And Court Practice Direction, 2007. See most especially paragraph 3(4) and (5) of the said Practice Direction thus:
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition pursuant to sub-paragraphs (3) and (4) above is final, and accordingly the tribunal or court shall be functus officio.
In the circumstance, there is every reason to hold that the application filed by the appellants seeking an order to relist the dismissed petition was ab initio incompetent on the ground that the lower tribunal was functus officio and thus lacked the fundamental jurisdiction to relist same.
Indeed, it is trite that a court of law has a duty not only to cherish but also guard its jurisdiction, jealously and courageously. However, in view of the far reaching and fundamental nature of jurisdiction, certain very stringent conditions must coexist before a court of law or tribunal can assume jurisdiction in any matter, to wit:
(a) The court must first and foremost, be properly constituted by the right members of the bench and no member must be disqualified for any reason:
(b) the subject matter of the case must be within the jurisdiction of the court and there must be no feature therein in habiting the exercise of the jurisdiction; and
(c) the case must come before the court by due process of law.
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Western Steel Works Ltd. v. Iron And Steel Workers Union (No.1) (1986) 3 NWLR (Pt.30) 617; Alamieyeseigha v. Igoniwari & Ors. (No.2) (2007) 7 NWLR (1034) 524 at 594 paragraphs D -D; 613 paragraphs C – D. 617, paragraph G, respectively.
Jurisdiction is likened to blood that sustains the life of an action in court, the lacking of which will render the action to be like an animal that has been drained of its blood. It will cease to have life. Any attempt to resuscitate it, without infusing blood into it, will be an abortive exercise. See Utih v. Onoyivwe (1991) 1NWLR (Pt.166) 166, per Bello, CJN (of blessed and remarkable memory).
It is rather axiomatic that jurisdiction is never conferred in obscurity. It is a power that is so crystally visible to all beholders of the Constitution and the rule of law. Thus, microscopic eyes are not at all needed to unearth it. See Bukar Mandara v. A.-G., Federation (1984) 1 SCNLR 311.
In the light of the above reasoning issue No.3 is hereby resolved in favour of the 95th and 96th respondents.
Issues 4 & 5:
I have earlier indicated the need to determine both issues 4 and 5 together. Issue NO.4 in particular, raises the question of whether the tribunal did not exhibit bias, by discrediting the letter addressed thereto by the National Secretary of the 1st petitioner to the effect that the 1st petitioner had not withdrawn from the petition. The issue No.5, on the other hand, raises the question of whether the tribunal did not exhibit further bias by ascribing suo motu previous adjournments in the matter to the petitioners, when no such issue had been raised by any of the parties and the tribunal’s record did not support such an assertion.
On the other hand, the 95th and 96th respondents’ issue No.4 relates to the appellants’ issues 4 and 5 in question. The appellants’ counsels’ submission is to the effect, inter alia, that without calling for oral evidence to resolve the conflict in the National Secretary’s letter and the State Secretary’s deposition contained in the counter affidavit thereof, the Chairman chose to accredit the mere ipse dixit of the latter. That, the tribunal had impugned the integrity of the appellants’ counsel who obtained the letter from the National Secretariat of the 1st appellant and exhibited it to the affidavit in support of the application. Thus, the learned counsel submitted that the Tribunal had taken a pre-determined position not only to dismiss the petition, but also to refuse to relist same. See Azoukwu v. Nwokanma (2005) 11 NWLR (Pt. 937) 537, 555 paragraphs D -E.
It was also argued that the manner in which the chairman fished out the so called State Chairman of the ANPP (1st appellant) from the crowd on 23/10/07 while the appellant’s counsel was making a submission, points to a clear case of bias. See Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 548 – 549 paragraphs G – B. The court is urged to accordingly hold that the tribunal was indeed biased in refusing to relist the petition as contained in the ruling of 07/11/07 thereof.
Contrariwise, the 95th and 96th respondents counsel’s submission is to the effect that the appellants’ allegations of bias against the tribunal are ridiculous. He traced the genesis of the first allegation of bias (issue No.4) to exhibit A attached to the affidavit deposed to by Ndaeyo Ndaeyo one of the appellants’ counsel. Exhibit¢ A was purportedly written by the ANPP National Secretary attempting to discredit both the chairman and secretary of the State chapter of the ANPP. The State Secretary of the ANPP however quickly deposed to a counter affidavit as a reaction to exhibit A. The 2nd and 3rd appellants did not file any further affidavit to the State Secretary’s counter affidavit. It was contended that in view of the weighty and unchallenged depositions contained in the State Secretary’s counter affidavit, no reasonable Tribunal would have gone ahead to relist the petition.
The learned counsel also debunked the allegation that the tribunal impugned the integrity of the appellants’ counsel in paragraph 4.1.5 of the appellants’ brief, It was argued that the case of Azuokwu v. Nwokanma (supra) is not apposite because the facts identified as examples of bias are not present in the instant appeal.
It was finally submitted that the allegation of bias against the tribunal was not borne out of the records but merely sentimental. We are urged to resolve the issue No.4 in the negative and dismiss ground 5 of the grounds of appeal, and accordingly dismiss the appeal in its entirety.
I have assiduously and rather critically perused the record of appeal, including the processes filed therein and vis-a-vis the respective briefs of argument of the counsel. It is trite that bias, with particular regard to court or tribunal, is an inclination, predisposition, or preparation to determine a matter or cause in a certain pre-conceived way, without any regard to laid down principles or law. Bias may be attributable to a number of factors including corruption, vengeance, partisanship, friendship, group/membership or association. See Azuokwu v. Nwokanma (supra) at 551 paragraphs D – E per Kalgo, JSC.
I have earlier in this judgment alluded to pages 763 – 765 of the record regarding the circumstances that warranted the Tribunal’s chairman to allow Sir Robilo Eyo, Esq. the State Chairman of the 1st petitioner, and the tribunal’s order to the parties to put their house in order. There is no doubt that in view of the circumstances surrounding the case as a whole, the writing of exhibit A by the National Secretary of the ANPP, Senator Saidu Kumo to the Chairman of the tribunal, was contemptuous and thus unfortunate, to say the least. The National Secretary had no right to personally address exhibit A to the chairman of the tribunal. Whatever grievances he had pertaining to the petition, ought to have been deposed to in an affidavit. Thus, in the circumstance, I am of the considered view that the filing of the counter affidavit by the state Secretary of the 1st appellant wherein he deposed maintaining the position thereof in disassociating itself from the petition, is in order.
In my considered view, there was no conflict to be resolved by the tribunal between the National Secretary’s letter which was contemptuously addressed to the Tribunal chairman, and the State Secretary’s counter affidavit in question. It is trite that a lawyer has an onerous duty to uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and thus shall not engage in any conduct which is unbecoming of a legal practitioner. See rule 1 of the rules of Professional Conduct for Legal Practitioners, which was made pursuant to the Legal Practitioners Act Cap 20 Laws of the Federal Republic of Nigeria, 1990, as amended.
In the instant case, rather than deposing to an affidavit, the National Secretary of the ANPP, with the apparent connivance and encouragement of the appellants’ counsel, chose to shamefully resort to writing a letter to the Chairman of the tribunal.
Regarding the tribunal’s observations on the previous adjournments of the pre-hearing session, I am of the view that the Tribunal was not biased in making those observations. It is so obvious that the adjournment on 20/9/07 to 27/9/07 was occasioned by the appellants’ counsel, as rightly pointed out by the tribunal. It’s instructive that the two applications of the respondents slated for hearing that day could not go on, due to the fact that the appellants’ counsel filed his counter affidavit thereto only that afternoon. Not surprisingly, the learned Silk Kazeem, SAN had to apologise thus:
‘However, I must apologise as we were only able to file our counter affidavit in opposition to the application this after noon.
See pages 754 – 755 of the record.
It is also in the record that, the adjournment from 28/9/07 (and not 29/9/07) to 05/10/07 was likewise occasioned by the appellants who deemed it fit to serve motion on notice seeking leave of the Tlibunal to file a reply out of time only that day. Kazeem, SAN even went out of his way to orally ask that-
“The time for pre-hearing session be extended beyond 5th October, 2007 when it would have been 30 days.”
The tribunal obliged the learned Silk and accordingly extended the pre-hearing session by 21 days from 05/10/07 by adjourning, the petition to 23/10/07. Thus, contrary to the baseless allegations of the leamed counsel, its evident on the face of the record that most of the adjournments so far granted by the tribunal were occasioned, one way or the other, by the appellants’ counsel.
The allegation that the chairman of the tribunal had fished out the State Chairman of ANPP from the crowd on 23/10/07, granted an audience thereto and thereafter adjourned the matter, is apparently not covered by any of the six grounds of appeal. The allegation thus goes to no issue and ought to thus be discountenanced by this Court. It is a fundamental doctrine that issues for determination must be formulated or distilled from grounds of appeal which in turn are predicated upon the ratio decidendi of the decision of the court in the judgment or ruling appealed against. See Dalek (Nig.) Ltd. v. OMPADEC (2007) All FWLR (Pt. 364) 204 at 226 paragraphs F-H .
In the instant case, the allegation that the tribunal chairman fished out the said State Chairman of the 1st ANPP has not been covered by any of the grounds of appeal and its thus hereby discountenanced, The sum total of the above postulations upon issues 4 and 5 is to the effect that there is no basis in the 2nd and 3rd appellants’ allegations of bias against the Tribunal. Both issues 4 and 5 are accordingly hereby resolved in favour of the 95th and 96th respondents.
Hence, in the light of the above reasoning, I have no hesitation any longer in coming to the most inevitable conclusion that this appeal is grossly devoid of any merits and ought to thus be dismissed by this court. It is a well settled principle of law, that findings of trial court or Tribunal that are evidently borne out of credible evidence and laid down rule or law must not be tempered with by an appellate court unless such findings are either perverse or unsupportable by credible evidence. See Enang v. Adu (1981) 11-12 SC 255; Theophilusv. State (1996) 1NWLR (Pt. 423) 139; Igbi v. State (2000) FWLR (Pt. 3) 358; (2000) 3 NWLR (Pt. 648) 169; Ibikunle v. State (2007) 2 NWLR (Pt. 1019) 546; Olayinka v. State (2007) All FWLR 163; State v. Emine (1992) 7 NWLR (Pt. 256) 658; Asanya v. State (1991) 3 NWLR (Pt. 180) 422; Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261, respectively.
Before putting the final dot on this judgment, I have deemed it expedient to reiterate that the tribunal had exhibited so much liberality in accommodating the parties and learned counsel. The appellants’ counsel, especially, were evidently accorded every opportunity by the tribunal for as long as five months to have their petition determined on the merits. However, for reasons best known thereto they took the tribunal’s liberality for granted and misused that golden opportunity, albeit at their own peril. Most undoubtedly, the 2nd and 3rd appellants, and nay their counsel, were the architects of their well deserved misfortune. It is therefore most unfortunate and rather uncharitable, to say the least, for the 2nd and 3rd appellants’ counsel to now allege that the lower tribunal was biased against them. That is not fair at all. It is trite, that the learned counsel as officers in the temple of justice have a duty to accord the tribunal’s chairman and members due respect, courtesy, and dignity. See Rule 35 of the Rules of Professional Conduct for Legal Practitioners (supra). In my considered view, the counsel’s duty to treat the tribunal with respect courtesy and dignity does not begin and end in the precinct of the four walls of the Tribunal’s building only. The counsel has an obligation to imbibe those sterling qualities even in his written submissions and other processes including notice and grounds of appeal and brief of argument. Thus, in my view, it would amount to an infraction of Rule 35 (supra) whereby a counsel, as in the instant case, falsely and rather mischievously, if not predatorily, accused a Judge of bias. As aptly and most authoritatively observed not too long ago by this court in Usani v. Duke (supra) –
The legal profession is no doubt the only honourable profession, given its impact on the society of men. Those who are privileged to be admitted to this “Exclusive Club” of gentle men must not only uphold the ethics laid down for the profession, they must always be seen to be doing so. The scenario evinced through the proceedings at the lower tribunal is a “show of shame”; no honourable men should be credited with it. Antics that will lead to delay of justice must be abhorred by officers in the citadel of justice. I stop here.
Per Aderemi, JCA (as he then was) at 647.
Ironically, the appeal in Usani v. Duke (supra) emanated from the same Calabar Judicial Division as the instant appeal and duly delivered on 15/12/05 in this magnificently ancient court hall. Hence, having held that the instant appeal is grossly devoid of merits, I hereby without any further hesitation dismiss same.
Consequently, the two rulings of the lower tribunal delivered on 25/10/07 and 07/11/07, respectively, are hereby affirmed.
The 95th and 96th respondents are hereby awarded a costs of N30, 000.00 against the 2nd and 3rd appellants.
SULEIMAN GALADIMA, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother Saulawa, JCA, just delivered. I agree entirely with his reasons and the conclusion that the appeal lacks merit. I too dismiss it.
The statement of facts and arguments of counsel on both sides of the matter based on their respective briefs have been so comprehensively stated in the lead judgment. For the purpose of my short contribution, I need not repeat them in detail. I will however highlight some critical facts upon which I intend to premise my observations.
It is now a notorious fact that on 14/4/2007, the 3rd respondent, the Independent National Electoral Commission conducted Gubernatorial Elections in all the 36 States nationwide. In Akwa Ibom State, the 2nd and 3rd appellants contested the said election under the platform of the 1st appellant – the All Nigerian Peoples Party (ANPP), as Governorship and Deputy Govemorship candidates respectively. The 126th, 129th, 131st, 133rd 135th, 137th and 139th respondents equally contested the said election along with their Deputies under the platforms of the 128th, 130th, 132nd, 134th, 138th and 140th respondents, that is, PDP, AC, ADC, CPP, and PPA, respectively.
At the conclusion of the election, the 126th and 127th respondents were declared winners and so returned as duly elected Governor or and Deputy Governor of Akwa Ibom State by the 1st, 2nd and 3rd respondents. All the appellants were dissatisfied with the results of that election. They filed their petition on 15/5/2007 seeking mainly for some declaratory reliefs and for orders of the lower tribunal nullifying the election and/or return of the 126th respondent as the winner in the purported election as that election was in compliance with the provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria, 1999.
It is observed that in the lower tribunal series of processes, including notices of preliminary objection were filed by the respondents, deliberated upon and finally disposed of on 3/8/2007. However, on 25/10/2007, the petition came up for the continuation of the pre-hearing session. It is then a letter endorsed by J. U. Udom Esq. was received by the lower Tribunal seeking an adjournment of the petition on the ground that the petitioners’ counsel, Ndaeyo Ndaeyo had travelled to Abuja. Both learned counsel Adeyele, SAN for the 95th respondent and E. O. Udoh Esq, for the 1st petitioner opposed the application for adjournment. The lower tribunal refused the adjournment, invoked paragraph 3(11)(a) of the Practice Direction No.2 and dismissed the petition. Aggrieved by this ruling the petitioners filed a motion on notice on 31/10/07 for an order to relist the petition and for an order further extending the pre-hearing session by 30 days from 26th October, 2007 to enable the tribunal hear and determine all pending applications before the order of dismissal was made. At the conclusion, the tribunal in its ruling of 7/11/2007 refused and struck out the application of the petitioners.
Being dissatisfied with the two rulings, the petitioners have now filed this appeal before this court. Parties filed their respective briefs of argument. Appellants’ brief was dated and filed 14/12/2007. Five issues were raised. On 15/1/2008, learned counsel for the appellants adopted and relied on the said brief. It is on this day E. O. Udoh. Esq, who announced his appearance for the 1st appellant referred us to the bundle of papers headed “Brief In Protest” purportedly filed on behalf of the 1st petitioner. I shall come to this anon. The 95th and 96th respondents’ brief of argument was dated and filed on 7/1/2008. The 97th respondent’s brief dated and filed on 15/1/2008 was struck out for having been filed out of time. It is also noteworthy that the learned counsel for the 1st – 94th respondents, Joe Agi, SAN had informed the court that he did not intend to file any brief. He however adopted the brief of the 95th and 96th Respondents and urged upon the Court to dismiss the appeal for lacking in merit.
I propose, first of all, to deal with the preliminary objection of the 97th respondent as a threshold issue particularly as it relates to grounds 1 to 3 of the appeal. It is contended that grounds 1-3 of the appellants’ ground of appeal filed on 22/11/07 relating to the two rulings of the lower tribunal, clearly on the 7th day since expiration of the period of 21 days statutorily allowed, makes the appeal on these grounds incompetent. Reliance was placed on paragraph 1 of the Practice Direction, No.2 of 2007.
However, the learned senior counsel G. A. A. Kaseem, SAN, submitted that the Practice Direction No.2 of 2007 issued by the Hon. President of this court under section 149 of the Electoral Act, 2006, does not apply to this appeal. It is argued that section 149 of the Act, under which the Practice Direction was issued, deals with an appeal against a decision of the election tribunal that the candidate returned has not been validly ejected. However, that the decision being contested in this appeal is one in which the petition of the appellant challenging the election of the person returned into office, had been dismissed by the tribunal. For this submission, learned senior counsel relied on paragraph 51 of the Rules of Procedure for Election Petitions contained in the 1st Schedule to the Electoral Act, by virtue of which, the applicable rules of procedure are the Court of Appeal Rules, 2007. He further relied on the decision of the Supreme Court in Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 @ 178 – 180(E).
In the lead judgment, my learned brother has graciously reproduced in extenso, grounds 1-3 of the grounds of appeal contained at pages 799-804 of the record for case of reference. It is not in doubt, that from the records of proceedings, that the appellants’ notice and grounds of appeal therein filed on 22/11/2007 were complaint against the tribunal’s ruling delivered on 25/10/2007. It is also common ground that by virtue of the provision of paragraph 1 of the Practice Directive No.2 of 2007, the appellants’ notice of appeal and the grounds were filed outside the period of 21 days. That paragraph prescribes the time for filing an appeal in respect of the subject matter under consideration. It provides –
“1. The appellant shall file in the Registry of the tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.”
In the exercise of the powers conferred upon the President of the Court of Appeal, by section 285 of the Constitution of the Federal Republic of Nigeria, 1999, section 8(2) of the Court of Appeal Act, 2004, and section 149 of the Electoral Act, 2006 the President gave the Practice Direction for the purpose of appeals coming to the Court of Appeal with the direction that the “Practice Direction be strictly observed by all the parties.”
The word “shall” in paragraph 1 of the notice Direction No.2 of 2007 made pursuant to the provision of section 149 of the Electoral Act 2006 No.2 has been held to be mandatory in many decisions. The appellants would no longer file their notice and grounds of appeal after the expiration of 21 days of the decision of the lower tribunal. In some decisions it has been emphasized that the provision of section 149(1) of the Electoral Act, 2006 is sacrosanct. It is to the effect that any appeal against any decision of any tribunal after expiration of 21 days from the decision shall be of no moment and incompetent. Failure therefore to appeal against the decision of the lower tribunal delivered on 25/10/2007 within 21 days as prescribed by the Electoral Act is fatal to grounds 1 and 2 of the grounds of appeal. Reliance is usually placed on the cases such as Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119 at 138A-C where Ogebe, JCA, held inter alia, as follows:
“The application is totally misconceived and a waste of judicial time. Even if the applicant has a legal interest in the appeal (which he has not been able to establish) his failure to bring his application within 21 days allowed to appeal from the judgment of the election tribunal provided for in section 138 of the Electoral Act 2002, permanently shuts him out as the time provided therein cannot be extended. Time is of essence in electoral matters and delay in taking prescribed steps can be fatal.”
Section 149 of the Electoral Act 2006, is pari materia with section 138 of Electoral Act 2002 under reference in this decision. I find it imperative too to quote from the case of Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446, page 536, E-G per Tobi, JSC, to throw some lights into the nature of proceedings in Election matters. He said:
“…an election petition is a proceeding that is sui generis, as it is of its own kind, possessing an individualistic character, unique or like only to itself. In other words, the proceeding has no affinity with any action known to common law…”
The above statement is all about the special nature of the election petition. The petition is heard and determined by an appropriate tribunal as usually provided by the Constitution. In the 1999 Constitution such provision is made under section 285 and the Sixth Schedule to the Constitution. The procedure largely governed by a law made specially to regulate the proceedings. The jurisdiction of the tribunal is of very special nature different from that in an ordinary civil case. It is not particularly related to ordinary rights and obligations of the parties concerned. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. Thus, it is imperative that in the instant case, the procedure laid down in the Electoral Act 2006 must be strictly complied with except to the extent that it is relaxed or waived under paragraph 49(1) of the 1st Schedule to the Act. See Okonkwo v. Ngige (supra); Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493, and Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423, and Balewa v. Muazu (1999) 5 NWLR (Pt.604) 638 at 643, C-F, and Sidi Ali v. PDP (2004) FWLR (Pt.l89) 1159 at 1176 and Iloka v. Utomi (1999) 2 NWLR (Pt. 592) 583 at 588 G-H. These are the established general guidelines pronounced in these plethora of decision of this court. But I must not lose sight of the pertinent question raised by the learned senior counsel for the appellants in his reply brief. It must be admitted that the 2006 Electoral Act is not profuse or comprehensive with its provisions on appeal generally.
The mention of “appeal” is merely incidental and can thus be adjudged to be indirect. This can be seen from the provision of section 149 thereof which provides that:
“149(1) If the election tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the determination of the appeal.
(2) If the election tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”
Indeed, and it is clear, that in the course of guarding against the existence of a vacuum the above mentioned provision is saying that a victorious respondent who loses at the election tribunal has 21 days to file his notice of appeal. Technically, the provision is silent on the time a petitioner who loses at the tribunal or as in the instant case, where his petition is summarily dismissed may appeal. It would appear that in the case of an appeal from a petition that has been dismissed which is relevant to the situation in this appeal, the petitioner would bring his appeal either to the Court of Appeal, in the case of a petition heard by election tribunal or to the Supreme Court in the case of a petition heard by the Court of Appeal, at first instance, within three months from the decision to be appealed from. This appears to be the decision of the Supreme Court in Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 179-180. In that case counsel to the appellant/cross-respondent contended that the cross-appeal having been filed on 15th February, 2005 was brought outside 21 days allowed from the delivery of the judgment of the Court of Appeal. It was submitted that the Supreme Court had no power under the Electoral Act to enlarge the time for filing of the cross-appeal notwithstanding the provision of paragraph 43(1) of the procedure for election petitions in the First Schedule to the Electoral Act 2002. Section 138(1) of the Electoral Act 2002 is exactly in pari material with section 149(1) of the Electoral Act 2006. Delivering the lead judgment Uwais, CJN at page 179-180, paragraphs G-B of the report stated thus:
“It could be seen that section 138 of the Electoral Act is concerned with a situation where the decision of a tribunal or court has been given against a candidate, who has been returned as elected, declaring that such a candidate has not been validly elected. With respect, the opposite is the case in this appeal because the Court of Appeal had declared the 1st and 2nd respondents/cross-appellants validly elected. Therefore the provisions of the section have no application here.
Paragraph 43(1) of the procedure for election petitions is concerned with the enlargement and abridgement of time for doing any act or, taking proceedings before a tribunal or court. When read together with paragraph 14 of the procedure for election petitions which deals with the amendment of election petition and reply, it is clear that paragraph 43(1) applies to the tribunal or court hearing at first instance, an election petition. I find support for this view in the provisions of paragraph 51 of the procedure for election petition … ”
Indeed, His Lordship Chief Justice of Nigeria, found ample support for his view in paragraph 51 of procedure for election petitions which, subject to provisions of the Act, permitted determination of appeals from the Court of Appeal or the Supreme Court in accordance with the Practice and Procedure relating to appeals in the Court of Appeal or of the Supreme Court regard being had to the need for urgency on electoral matters. He then concluded:
“By the provisions of section 27(2)(a) of the Supreme Court Act Cap 424, the period prescribed for the giving of notice to appeal from a decision of the Court of Appeal to the Supreme Court in a civil case is three months. In the absence of any specific provision in the Electoral Act, 2002 as to the time for giving notice to appeal as such and in the light of paragraph 51 of the Procedure for Election Petitions, I hold that the provisions of S. 27(2)(a) of the Supreme Court Act applies to this case. The judgment of the Court of Appeal in the petition was delivered on 20th December, 2004. Three months thence ended on 20th March, 2005 but the cross-appeal herein was filed on 15th February, 2005 after obtaining leave from this Court on 9th February, 2005 to do so. That is well within three months. The preliminary objection, therefore, fails and it is dismissed. I hold that the cross-appeal was brought within time.”
Consequently, in the light of the above Supreme Court decision there is no doubt that section 24(2)(a) of the Court of Appeal Act which is in pari materia with section 27(2)(a) of the Supreme Court Act and which prescribes that the period for giving notice of appeal in a final decision is three months applies to the instant appeal.
That being so, the notice of appeal dated 19th November, 2007 and filed on 22nd November, 2007 against the final decision of the lower tribunal dismissing the petition on 25th October, 2007 was filed within the time statutorily prescribed and therefore valid.
It is most pertinent to observe that in most of these cases decided by the Court of Appeal on the burning question of the time within which right of appeal must be exercised, attention was not sufficiently paid or drawn to Buhari v. case (supra) vis-a-vis the peculiar nature of this instant appeal brought before us because of the fact that the appellant’s appeal was summarily dismissed, in limine, so to say, without his petition being heard on the merits. But by our hallowed doctrine of stare decisis I cannot pretend that the decision does not exist. I have sufficiently demonstrated in these judgments that there is need to observe provisions of the Practice Direction regarding the requirement that time is of the essence in election matters. That is to say election petitions are expected to be devoid of the procedural cogs that will unnecessarily cause delay in the disposition of the substantive dispute. See Orubu v. NEC (1988) 12 SCNJ 254 also (1988) 5 NWLR (Pt. 94) 323 at 340 and Akpokinivo v. Ovie Agas (2004) All FWLR (Pt. 227) 427; (2004) 10 NWLR (Pt. 881) 394.
I can now come back to the merits of the appeal. Firstly, I must reiterate that the bundle of papers headed “Brief In Protest” dated and filed on 24/12/2007 on behalf of the 1st petitioner, by its counsel, inelegantly drafted is no brief within the intendment and contemplation of paragraph 6 of the Practice Direction No.2 2007.
It provides:
“6(a) The brief, which may be settled by counsel, shall contain what are, in the appellants view, of the issues arising in the appeal.
(b) All briefs, shall be concluded with a numbered summary of the reasons upon which the argument is founded.
(c) Wherever possible, or necessary, the reasons should also be supported by particulars of the titles, dates and pages of cases reported in the law reports, or elsewhere including the summary of the decision in such case, which the parties propose to rely upon. If necessary, reference should also be made to relevant statutory instruments, law books and other legal journals.
(d) The parties shall assume that briefs will be read, and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the tribunal, and wherever necessary, reference should also be made to all relevant documents or exhibits on which they propose to rely in argument.”
The purported brief which the learned counsel amended impromptu in court, from its con is a protest letter. It is complained that the 1st respondent did not consent or authorize the filing and prosecution of the petition or this appeal. Also that it did not sign the undertaking to relist the petition and is not contesting the results of the election, subject of this appeal.
In the circumstances, I must discountenance this worthless bundle. I agree with my learned brother who observed in his lead judgment, that the purported brief has not satisfied the fundamental conditions stipulated in paragraph 6 of the Practice Direction No.2 2007 reproduced above. It is devoid of any issue calling for determination of the appeal. It must be discountenanced.
The 97th respondent’s brief of argument filed on 10/1/2008 out of time was struck out and accordingly discountenanced.
However, in the brief of argument of the 95th and 96th respondents, they incorporated notice of preliminary objection. The first ground which challenges the competence of the notice and 1st and 2nd grounds of appeal of the appellant have been earlier considered above and the said objection was not sustained and accordingly dismissed.
The second ground of objection is to the effect that all the grounds of appeal are unwieldy, unnecessarily argumentative and narrative, and it is accordingly urged that the grounds be struck out. Undoubtedly, careful perusal of all the six grounds of appeal, with the exception of ground 1, the remaining five grounds are preceded by a lengthy and verbatim narration from the decisions of the lower tribunal. The grounds are awkward and prolix. Nevertheless, the wisdom encapsulated in a number of decisions of this court and indeed, the apex court remains that once the substance of complaint of the appellant is discernible from his grounds of appeal, it may not be necessary to strike out the grounds of appeal entirely; as this is to safe guard his constitutional right of appeal as enshrined in section 246 of the 1999 Constitution, and fair hearing under section 36 of the said Constitution. See Panache Communications Ltd. v. Aikhomu (1994) 2 NWLR (Pt.327) 420; Ogunbi v. Kosok, (1991) 8 NWLR (Pt. 210) 511 and Ogboru v. Ibori (2006) 17 NWLR (Pt.1009) 542 at 574 G-11.
It is in the light of this that I also hold the opinion that the preliminary objection lacks merit and be dismissed.
It remains for me to conclude that my learned brother has commendably and meticulously considered the merit of this appeal in the light of the issues and arguments advanced by the respective counsel for the patties. I equally agree with his reasoning in the detailed consideration of the grounds of the appeal. I therefore agree entirely with him that this appeal lacks merit. I too dismiss it and affirm the two rulings of the lower tribunal delivered on 25/10/2005 and 7/11/2007 respectively. I abide by the order of N30,000.00 costs made in the lead judgment in favour of 95th and 96th respondents.
KUDIRAT M. O. KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft a copy of the judgment just delivered by my learned brother, Saulawa, JCA. The reasoning and conclusions reached therein are in accord with mine. I also find the appeal to be unmeritorious and dismiss it accordingly.
I make the comments below in support of the lead judgment and by way of emphasis.
The 95th and 96th respondents raised a preliminary objection to the hearing of this appeal on the following grounds:
1. Grounds 1, 2 & 3 of the grounds of appeal are incompetent because they are purportedly challenging the decision of the honourable trial tribunal delivered on 25/10/07 whereas the time within which such could be competently done expired-on 15/10/07.
2. The grounds of appeal offend Order 6 rule 2(3) of the Court of Appeal Rules 2007.
In support of the first ground of objection, the 95th and 96th respondents relied on paragraph I of the Practice Directions No.2 of 2007, which provides:
“1. The appellant shall file in the Registry of the tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.”
Reliance was also placed on the introduction to the Practice Direction which states that the said Practice Direction shall be strictly observed by all parties.
It was contended on behalf of the 95th & 96th respondents that the Practice Direction were made to emphasise the fact that the provision of section 149(1) of the Electoral Act is sacrosanct and that any appeal against any decision of an electoral tribunal after 21 days from the date of the decision is incompetent. Reliance was placed on the case of Okonkwo v. Ngige (2006) 8 NWLR (Pt.981) 119 at 138 A-C.
Learned senior counsel for the 95th and 96th respondents referred to grounds 1 & 2 of the grounds of appeal and contended that the decision appealed against was delivered on 25/10/07 while the notice of appeal was filed on 22/11/07.
It is contended that the notice of appeal should have been filed on or before 15/11/07.
It is further contended that although ground 3 purports to be a complaint against the ruling delivered on 7/11/07, a careful examination of the ground and its particulars and the submissions made in respect thereof in the appellants brief, show that it is in fact a complaint against the decision of the tribunal delivered on 25/10/07.
He urged us to strike out ground 3 on the ground that the notice of appeal was filed outside the 21 days stipulated in the Electoral Act and the Practice Direction No.2 of 2007.
The appellants in their Reply brief however, contend that section 149 of the Electoral Act 2006 under which the Practice Directions were issued deals with an appeal against a decision of the election tribunal that the candidate returned in this appeal has not been validly elected.
It is contended that the decision being contested in this appeal is not covered by section 149 of the Electoral Act. It is further submitted on behalf of the appellants that by virtue of the provisions of paragraph 51 of the Rules of Procedure of Election Petitions contained in the First Schedule to the Electoral Act 2006, the applicable rules of procedure are the Court of Appeal Rules 2007. Reliance was placed on the Supreme Court decision in Buhari v. Obasanjo (2005)13 NWLR (Pt.941) 1 at 178 F-180E.
Learned senior counsel submitted that sub-section 24(2) of the Court of Appeal Act, which is in pari materia with section 27(2)(a) of the Supreme Coul1 Act applies to this appeal and consequently the notice of appeal dated 19th November, 2007 against the final decision of the Tribunal dismissing the petition on 25/10/07 was filed within the time statutorily prescribed and is therefore valid.
It is not in dispute that on 25/10/07 the lower Tribunal dismissed the appellants petition in the exercise of its powers under paragraph 3(11)(a) of the Election Tribunal and Court Practice Direction 2007. Paragraph 3(11)(a) and (b) provides:
“3(11) If a party or his legal practitioner fails to attend the pre-healing session or obey a scheduling or pre-hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the tribunal or court shall –
(a) in the case of the petitioner dismiss the petition.
(b) in the case of a respondent enter judgment against, him.”
I have carefully examined grounds 1, 2 & 3 of the notice and grounds of appeal (reproduced in the lead judgment). Grounds 1 and 2 clearly challenge the decision of the tribunal delivered on 25/10/07. The record of appeal, at page 798 thereof, indicates that the notice of appeal was filed on 22/11/07, more than 21 days from the date of the decision.
It is pertinent at this stage to take a critical look at the Practice Direction No.2 of 2007. In its introduction it states thus:
“For the purpose of appeals coming to the Court of Appeal under section 149 of the Electoral Act 2006, No 2. this Practice Direction shall be strictly observed by all parties …”
Section 149 of the Electoral Act 2006 provides:
“149(1) If the election tribunal or court as may be, determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the determination of the appeal.
(2) If the election tribunal or the court as the case may be determines that a candidate was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the electoral tribunal or court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”
The Supreme Court in the case of Buhari v. Obasanjo (2005) 13 NWLR (941) 179-180 G-E construed the provisions of section 138 of the Electoral Act 2002, which are in pari materia with section 149 of the Electoral Act 2006 and held as follows at p. 179 G-H:
“It could be seen that section 138 of the Electoral – Act is concerned with a situation where the decision of a tribunal or court has been given against a candidate, who has been returned as elected, declaring that such a candidate has not been validly elected. With respect, the opposite is the case in this appeal because the Court of Appeal has declared the 1st & 2nd respondents/cross-appellants validly elected.
Therefore the provisions of the section have no application here.”
In the decision giving rise to the instant appeal, there was no determination as to whether the 95th respondent was validly elected or not. The appeal was dismissed in limine. It follows, in my humble view that the requirement of 21 days provided for in paragraph 1 of the Practice Directions is not applicable in the present circumstances because the appeal does not fall within the ambit of section 149 of the Electoral Act.
Paragraph 51 of the Rules of Procedure for election petitions contained in the First Schedule to the Electoral Act 2006 provides:
“Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court, as the case may be, regard being had to the need for urgency on electoral matters.”
Section 24(2)(a) of the Court of Appeal Act prescribes the period of three months for giving notice of appeal from a final decision in a civil cause for matter. The said provision is in pari materia with section 27(2)(a) of the Supreme Court Act. The Supreme Court in the case of Buhari v. Obasanjo (supra) at page 180 D held thus:
“By the provisions of section 27(2)(a) of the Supreme Court Act, Cap. 424 the period prescribed for the giving of notice of appeal from a decision of the Court of Appeal to the Supreme Court in a civil case is three months. In the absence of any specific provision in the Electoral Act 2002 as to the time for giving notice to appeal and in the light of paragraph 51 of the procedure for election petition. I hold that the provision of section 27(2)(a) of the Supreme Court Act Applies to this case.”
This court, on the doctrine of stare decisis, is bound by the above decision of the Supreme Court, there being no provision in the Electoral Act as to the time for giving a notice of appeal from a decision of the tribunal or court dismissing a petition in limine.
I am therefore of the view and I do hold that the notice of appeal filed on 22/11/07 was filed within the period prescribed by section 24(2)(a) of the Court of Appeal Act. The appeal is therefore competent.
My learned brother has critically considered the second ground of objection in the lead judgment. I agree with his views expressed in respect thereof and do not intend to add anything further. Suffice it to say that I find the preliminary objection to be lacking in merit. I also overrule it.
With regard to the main appeal, the two main issues in contention are whether the lower tribunal exercised its discretion judicially and judiciously in dismissing the appellant’s petition on 25/10/07 pursuant to paragraph 3(11)(a) of the election tribunal and Court Practice Direction 2007 and whether the tribunal was correct to have refused the application to re-list the petition on the ground inter alia of insufficiency of the undertaking entered into pursuant to paragraph 3(12) of the Practice Direction by the 2nd petitioner/applicant/appellant on behalf of all the petitioners.
Paragraph 3(11)(a) and (b) of the Election Tribunal and Court Practice Direction 2007 enjoins the court to exercise its discretion having regard to all the facts and circumstances of the case before it as to whether or not the parties are conscientiously participating in the pre-trial hearing sessions.
The requirement and procedure for pre-trial hearing sessions as contained in the Tribunal and Court Practice Direction 2007 came into existence as a measure to expedite the hearing of election petitions by ensuring that all preliminary matters and interlocutory applications are taken and disposed of during the pre-trial hearing session. This is to ensure that when a matter finally comes before the court for trial, there would be no delays occasioned by interlocutory applications or preliminary matters.
In order for the procedure to be effective, strict rules are put in place to ensure compliance with pre-hearing schedules. Furthermore, stiff penalties, such as those contained in paragraph 3(11)(a) and (b) above are imposed where it is shown that a party or his legal practitioner is frustrating the process by failing or refusing to cooperate therewith.
Election petitions are a special breed of litigation, frequently described as sui generis, which must be heard expeditiously. See: Bounwe v. R.E.C. Delta State (2006) 1 NWLR (Pt. 961) 286 at 310 H; Anazodo v. Audu (1999) 4 NWLR (Pt.600) 530; Owuru v. INEC (1999) 10 NWLR (Pt.622) 201.
Neveltheless it is also trite that justice must never be sacrificed on the altar of speed. Paragraph 3(9) of the Practice Direction provides:
(9) “The pre-hearing session or series of pre-hearing, sessions with respect to any petition shall be completed within 30 days of its commencement and the parties and their legal practitioners shall cooperate with the Tribunal or Court in working within this timetable. As far as practicable pre-healing sessions shall be held from day to day or, adjourned only for the purposes of compliance with pre-hearing session, unless extended by the Chairman or the Presiding Justice.”
On 23/10/07 when the matter came up before the tribunal, one Robilo Eyo, the State Chairman of the 1st appellant (A.N.P.P.) who was physically present in court informed the tribunal that the 1st appellant had not authorized the petition as they do not intend to contest the result of the election. Based on this information the tribunal adjourned the proceedings in the following terms:
“we are in view of this development inclined to and do hereby give the petitioners 48 hours to put their house in order and to file any necessary papers they might deem appropriate to enable regularize the position of the petition. This petition is hereby adjourned to the 25th October, 2007 for a report on the development or continuation of the pre-hearing session.”
It is noteworthy that in the exercise of its discretion as provided for in paragraph 3(9) of the Practice Direction, the lower Tribunal on 28/9/07 extended the pre-trial hearing by 21 days from 5th October, 2007. The extension was occasioned by processes filed by learned senior counsel for the petitioners out of time.
At the resumed hearing of the tribunal on 25/10/07, it was confronted with a letter from learned counsel for the petitioners seeking a further adjournment to 6th or 7th November, 2007 failing to take into account the fact that the pre-trial hearing session was due to be concluded on 26/10/07.
In its ruling delivered on 25/10/07 at pages 784-786 of the record, and fully set out in the lead judgment, the lower tribunal stated in very clear terms the reason for its refusal of the application for adjournment and the dismissal of the petition.
The law is settled that an appellate court will not interfere with the exercise of discretion by a trial court unless such exercise was based on wrong or insufficient material, or where no weight or insufficient weight was given to relevant considerations or where the tribunal acted under a misconception of the law or under misapprehension of fact, and in all other cases where it is in the interest of justice to do so.
See: Mobil Oil v. Federal Board of Inland Revenue (1977) 3 SC 97; Ukwe v. Bunge (1997) 8 NWLR (Pt. 518) 527.
In the instant case, I am of the view that the lower tribunal exercised it discretion judicially and judiciously taking into account the entire circumstance of the case and the interest of justice. Contrary to the view expressed by the learned senior counsel for the appellants, the lower tribunal was perfectly in order to examine it records and make use thereof for the purpose of determining whether or not to exercise its discretion in his clients’ favour. See: Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210 at 229E The petitioners had from the record, clearly shown themselves to be unprepared to adhere to the pre-trial hearing schedule or participate in the proceedings in good faith.
In the circumstances, I find no reason to interfere with the ruling of the tribunal in this regard.
Learned senior counsel for the appellants made heavy weather of the fact that the lower tribunal rejected the application to re-list the petition on the ground that the undertaking made pursuant to paragraph 3(12) of the Practice Direction ought to have been made by all the petitioners individually and not by the 2nd petitioner on their behalf. Having carefully examined the provisions of Paragraphs 3(11)(a) & (b) and 12 of the Practice Direction, I am inclined to agree with the views expressed by my learned brother in the lead judgment that an application to set aside (not re-list) a judgment given under paragraph 3(11) of the Practice Direction can only be made where judgment has been entered against the respondent (in default of diligent or bona fide participation in the pre-trial session as it were).
The application to re-list the petition was therefore misconceived ab initio and therefore incompetent.
Even if it were competent, the issue of undertaking by the 2nd petitioner on, behalf of all the petitioners was not the only ground upon which the tribunal based the exercise of its discretion. It considered the fact that five months after the filing of the petition, the petitioners were still seeking an extension of the pre-trial hearing session, that a majority of adjournments up till then had been at the instance of the petitioners, or occasioned by them, the absence of the 2nd and 3rd petitioners throughout the proceedings before the tribunal and the fact that there was a disclaimer by the 1st petitioner regarding the filing of the petition in the first place.
Thus, whichever way one looks at it the application to relist the petition was rightly rejected by the lower tribunal. For these and the more detailed views expressed by my learned brother in the lead judgment, I also dismiss this appeal. The two rulings of the lower tribunal delivered on 25/10/07 and 7/11/07 respectively are accordingly affirmed. Costs of N30,000.00 are hereby awarded in favour of the 95th & 96th respondents against the 2nd and 3rd appellants.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JCA. I do not see any reason to disagl’ee with the position taken by him in dismissing this appeal as it lacks merit.
I however want to make some comments by way of emphasis. Paragraph 3(11)(a) and (b) of the Election tribunal and Court Practice Direction 2007 provides:
“3(11) If a party or his legal practitioner fails to attend the pre-hearing session or obey a scheduling or pre-hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the tribunal or court shall –
(a) in the case of the petitioner dismiss the petition.
(b) in the case of a respondent enter judgment against, him.”
In the instant appeal under consideration, there was evidence before the lower tribunal that the pre-hearing session was commenced on 21/8/07 and the tribunal had granted up to two extensions at the instance of the petitioner to enable it conclude the pre-hearing session.
The learned counsel for the appellant despite the indulgence by way of adjournments, granted to him earlier, wrote another letter asking for adjournment till November 6″‘ 2007, knowing fully well that the pre-hearing session was due to be completed on 26/10/2007.
It is on record that there was no application for extention of time of the pre-hearing session.
In my humble view, the request for adjournment was like taking the lower tribunal for a ride. It did not show seriousness on the part of the appellants (i.e. 2nd and 3rd).
It must be emphasized that this is election petition proceedings and it is in a class of its own i.e. sui generis. It has its own set of rules, which aids quick dispensation of justice. And if the rules are followed strictly, the parties to the petition and indeed the general public would be relieved of the trauma of unserious and endless election petition.
The special nature of election petition was succinctly stated by the Supreme Court in the case of Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 as follows:
“An election petition is a proceeding that is sui generis, as it is of its own kind, possessing an individualistic character, unique or like only to itself. It is distinct from ordinary civil proceedings. It is not particularly related to ordinary rights and obligations of the parties concerned. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the petition.”
See also-
Kallamu v. Guin (2003) 16 NWLR (Pt. 847) 493.
Buhari v. Obasanjo (2003) 17 NWLR (Pt.850) 423.
In the appeal under consideration, the lower tribunal has exercised its discretion by dismissing the petition after taking into account the circumstances surrounding this petition.
It is trite that an appellate court will not interfere with an exercise of discretion by lower court simply because if it had been faced with a similar situation it would have exercised the discretion differently. But it may do so in special circumstances such as where the discretion was exercised on wrong or insufficient material or where no weight or insufficient weight was given to relevant considerations or where the tribunal acted under misconception of law or under misapprehension of fact and in all other cases where it is in the interest of justice to interfere.
See – Chief U. Ukwu & Ors. v. Chief Mark Bunge (1997) 7 SCNJ 262 at 263; (1997) 8 NWLR (Pt.518) 527.
In view of the foregoing, since it has not been shown that the discretion was exercised wrongly, there is no basis for me to interfere with the ruling of the lower tribunal.
The learned counsel to the 1st petitioner, in his own case, filed a defective brief which he headed “Brief in Protest” which he later amended to read “Respondent’s Brief.”
The said brief of argument fell short of the requirements contained in Paragraph 6 of the Practice Direction No.2 of 2007. In my humble view, a brief of argument is meant to assist the court in appreciating the issues in controversy between the pm1ies and thus enhance and facilitate the easy resolution of those issues. It is not meant to confuse issues or put unnecessary strain on the court in the determination of the issues in controversy.
As a matter of fact, the final determination of an appeal depends on how material questions in the appeal are answered. The issues themselves must arise from the grounds of appeal. To decide an appeal on questions that neither arise from the grounds of appeal nor from the issues arising therefrom is contrary to our appellate justice system. It takes nonsense of the brief system for a party to argue an appeal as if they are untrammelled by the grounds of appeal and the issues formulated therefrom.
Counsel should therefore caution themselves and be reminded that good advocacy, like writing a good brief, does not accommodate irrelevancies. The other issues in this appeal have been fully discussed in the leading judgment and I need not go into them because I fully agree with the reasoning and conclusion reached in the said judgment. In conclusion, it is for the above reasons and fuller reasons in the lead judgment that I also find that the appeal lacks merit and it is accordingly dismissed. I abide by the order for costs contained in the aforesaid judgment.
ALFRED PEARSON EYEWUMI AWALA, J.C.A.: This contribution is in summary. The appeal is predicated on two decisions of the Gubernatorial Election Tribunal for Alkwa Ibom State holden at Uyo delivered on 25/10/07 and 7/11/07 respectively following the victory of the 65th, 96th and 97th respondents at the polls during the last nationwide general election held 14/4/07. In the 1st decision, the appellants, petition was dismissed in that they demonstrated lack of preparedness and/or failure to participate in the pre-hearing sessions in good faith pursuant to Paragraph 3(1l)(a) of the Practice Direction No.2 of 2007. In the 2nd decision, the appellants (except the 1st appellant) applied to relist the petition dismissed, that was refused and dismissed for incompetence.
It is against these backdrops, this appeal was filed on 19/11/07 raising six grounds of appeal and praying for the following reliefs:
“To reverse the decisions of the Akwa Ibom State Election Tribunal and restore the petition to the cause list and order that the said petition shall be heard by another panel of the Akwa Ibom State Governorship Election Petition Tribunal to be constituted by the President of the Court of Appeal.”
On 7/1/08, the 95th and 96th respondents’ filed a joint notice of preliminary objection challenging the competence of the appeal. (Vide page 4 of their brief of argument filed 7/l/08) ..So did the 1st
appellant (ANPP) represented by E. O. Udoh, Esq., whose respondent’s brief of Argument even though it did not comply with the tenet of Order 17 rule 3 of the Court of Appeal, 2006, it will nevertheless be and is herewith considered on the merit in the interest of justice.
The resultant effect of the notices of preliminary objections (supra) if followed to their logical conclusions in my opinion will abort or conclude the consideration of the appeal which will amount to a technical justice (or a knock out) rather than the modern trend in our courts of ensuring that substantial justice is done to all corners to our courts. It is now trite that the hey days of technicalities are gone for ever. We are not in a wrestling match or contest. The court is now more interested in doing substantial justice as it were then reliance on technicalities which can only lead to injustice.
See generally State v. Gwonto (1983) I SCNLR 142 at 160; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Maersi Line v. Addide Investment Ltd. (2002) 11 NWLR (Pt. 778) 317.
In Maersk case (supra) the Supreme Court held thus:
“The judicial process malfunctions and is discredited when it is bogged down by technicality and is manipulated to go from technicality to technicality and thrives on technicality. That is why at all times the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and hallmark of our judicial system”
In my view, the said 1st appellant’s brief filed by E. O. Udoh, Esq. as a respondent’s brief on 24/12/07 averring that his client (ANPP) is not interested in the appeal is not in the same class as the said objections. The 1st appellant’s objection knocks off the lid out of the Appeal filed by the learned senior counsel Chief Adetola – Kaseem, SAN. Besides, the printed record shows clearly that the 2nd and 3rd appellants did not show interest or enthusiasm in pursuing their petition at the pre-hearing sessions. That at most of the said sittings (pre-hearing sessions) they were not present in person. That more importantly out of the eleven adjournments granted by the lower tribunal as from the date the petition was filled on 11/7/07, six were either at the instance of the petitioners/appellants (excluding the 1st appellant) or occasioned by them.
The above scenarios are all findings of fact by the lower tribunal. It is now settled law unless such findings are perverse and can not be supported by evidence it does not lie in us to interfere. In any case, my view is, there is no such short coming in the said findings to warrant this court interfering. I hereby join the lead judgment in affirming the first decision.
See Omoregie v. Idungiemwange (1985) 2 NWLR (Pt. 5) 4; Lawal v. Dawodu (1972) 1All NLR 270; Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172; Zenon Pet and Gas v. Idrisiyya Ltd. (2006) 8 NWLR (Pt. 982) 221.
I see also the second decision is impeccable. By paragraph 3(11)(a) and 3(12) of the Practice Direction No.2 2007 the petition was dismissed by the lower tribunal and affirmed by us for reasons ably postulated in the lead judgment which I agree with totally.
The printed record as shown at page 797 clearly as crystal that the undertaking filed along with the application to re-list the dismissed petition was signed only by one of the applicants and his counsel (the 2nd applicant) on his behalf and on behalf of the 1st and 3rd applicants which did not meet the requirement of the law (See paragraph 3(12). The law is manifestly patent, it is if there is more than one applicant, as in the instant appeal, all the applicants severally and together with their respective learned counsel must sign jointly an undertaking to prosecute the pre-heating sessions diligently. This was not to be so in the instant case. I find myself therefore in agreement unreservedly with the lower tribunal’s refusal of the motion and the dismissal of the petition.
Finally the 2nd and 3rd appellants’ prayer that this court should decree and or order the re-listing of the petition to the cause list to be heard by another panel to be reconstituted by the President of the Court of Appeal, is preposterous and lacking in merit. There is no petition left at the lower tribunal to go back to. It had been dismissed. This court does not make it its business to make orders in vain. The prayer is refused. In the final analysis I hold that both decisions are not perverse. They are herewith affirmed by me. See generally Akibu v. Opaleye (1974) 11 SC 189; Woluchem v. Gudi (1981) 5 SC 291; Onwube v. Nduba (1973) 3 SC 106 and Kodilinye v. Mbanefo Odu (1935) 2 WACA 336.
For the above reasons and the more elaborate ones in the lead judgment just delivered by my learned brother Saulawa, JCA, I too will dismiss this appeal. I abide by the order as to cost contained in the lead judgment.
Appeal dismissed
Appearances
Emmanuel O. O. Udoh, Esq.For Appellant
AND
Chief G.A. Adetola Kazeem, SAN (with him, N. U. Ndaeyo Eyo, Esq.)
Joe Agi, SAN, (with him, Nta A. ESq; G.N. Okonkwo, M. E. Nitibi [Miss] and Chris Onugba, Esq.)
Chief Duro Adeyele, SAN (with him, Umannah, Esq.; Goddy Umoh, Esq. and E. Onah, Esq.)
E. Bassey, Esq. (with him, E. Ntekim, Esq. and Emmanuel Akpan, Esq.)For Respondent
