ALL PROGRESSIVE GRAND ALLIANCE v. ERIC ASO KALU & ORS
(2019)LCN/13613(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2019
CA/OW/EPT/SHA/9/2019
RATIO
NON-SUIT: THE POSITION OF THE LAW
The position of the law in respect of non-suit, is to the effect that it is wrong for a Court whose rules of civil procedure provide for such a relief, to order a non-suit, or strike out a case, or order the retrial of a case, without calling on parties to address it on the desirability of such an order. See the case of EGBUCHU V. CONTINENTAL MERCHANT BANK PLC (2016) LPELR 40053 (SC) amongst many others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)
AND
1. ERIC ASO KALU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. ONYEKWERE MICHAEL UKOHA Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal is against the ruling delivered on 10/6/2019, by the National and Houses of Assembly Election Tribunal holden at Umuahia, Abia State (hereafter to be simply referred to as ?the Tribunal?). The Tribunal consisted of Hon. Justice C.I. Akintayo ? Chairman and Hon. Justice I.P.C. Igwe ? Member 1. The ruling on appeal, was delivered in Election Petition No. EPT/AP/HA/06/2019 (hereafter to be simply referred to as ?the petition?). The petition was initiated on 29/3/2019 by the 1st and 2nd Respondents herein (hereafter to be simply referred to as ?the Petitioners?). The grounds of the petition are: –
?1. That the 2nd Respondent (i.e. 4th Respondent herein) declared as elected the 1st Respondent (i.e. the 3rd Respondent herein) at the election on the platform of the 3rd Respondent (i.e. the Appellant herein) was not duly elected by a majority of lawful votes cast at the election.
?2. That the 2nd Respondent (i.e. the 4th Respondent herein) was not qualified to contest the election not being
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a person qualified to vote at the election.
3. That the return in the election of the 2nd Respondent (i.e. 4th Respondent herein) was invalid by reason of non-compliance with the provisions of the Electoral Act as amended.
4. That the return of the 2nd Respondent (i.e. 4th Respondent herein) in the said election is invalid by reason of corrupt practices.
5. That the 1st Petitioner (i.e. the 1st Respondent herein) ought to be the candidate returned as the duly elected candidate at the said election on the platform of the 2nd Petitioner (i.e. 2nd Respondent herein) as the candidate with the highest number of lawful votes, cast at the election as ascertained by the votes cast at the polling units and captured at the ward collation level which was then deflated in respect of the Petitioners (i.e. 1st and 2nd Respondents herein) but inflated in respect of the 2nd and 3rd Respondents (i.e. 4th Respondent and Appellant herein).
ALTERNATIVE TO GROUND 4
That the election in the said constituency was fundamentally flawed and not in compliance, substantially or otherwise, with the Electoral Act and guidelines and ought to be nullified.?<br< p=””
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In paragraph 42 of the petition, the Petitioners pray as follows: –
?a. That it may be determined that the 2nd Respondent (i.e. the 4th Respondent herein) was not duly elected by a majority of lawful votes cast in the said election and therefore the declaration and return of the 2nd Respondent (i.e. 4th Respondent herein) as the member representing Arochukwu LGA for Arochukwu State Constituency in Abia State House of Assembly is unlawful, undue, null, void and of no effect.
b. That it may be determined that the 1st Petitioner (i.e. the 1st Respondent herein) was duly and validly elected and ought to be returned as representing as a candidate (sic) of the 2nd Petitioner (i.e. the 2nd Respondent herein) for Arochukwu LGA for Arochukwu State Constituency in Abia State House of Assembly having polled the highest number of lawful votes cast at the election to the office of the Representative of Arochukwu LGA for Arochukwu State Constituency in Abia State House of Assembly held on 9th March, 2019 and having satisfied the constitutional requirements for the said election.
c. An order directing the 1st Respondent (i.e. the 3rd Respondent herein)
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to issue certificate of return to the Petitioner?s (sic) candidate as the duly elected Representative of Arochukwu LGA for Arochukwu State Constituency in Abia State House of Assembly.
d. That it may be determined and thus held that upon a proper collation of the valid votes cast at the said election that the votes stand as follows:
I. ERIC ASO KALU who contested under the PEOPLES DEMOCRATIC PARTY (PDP) ? 5223
II. ONYEKWERE MICHAEL UKOHA who contested under the ALL PROGRESSIVE GRAND ALLIANCE (APGA) ? 4802
e. That the certificate of return issued by the 1st Respondent (i.e. 3rd Respondent herein) to the 2nd Respondent (i.e. 4th Respondent herein) be annulled and in its stead that the 1st Respondent (i.e. 3rd Respondent herein) be directed to issue the certificate of return in respect of the election to the 1st Petitioner (i.e. 1st Respondent herein)
IN THE ALTERNATIVE
f. That the election to the Arochukwu LGA for Arochukwu State Constituency in Abia State House of Assembly held on 9th March, 2019 be nullified arising from non-compliance with the law and guidelines for the conduct of elections and a fresh election ordered.?
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The Appellant is the 3rd Respondent in the petition. The election was conducted by the 3rd Respondent herein, and which is the 1st Respondent in the petition.
On 29/4/2019, the Appellant filed a memorandum of appearance by which it entered a conditional appearance in the petition as it intended to oppose the same. The Appellant also filed a reply to the petition and raised therein the preliminary points of law set out hereunder which it wanted the Tribunal to determine in limine: –
?(i) The petition is incompetent and same ought to be struck out for incompetence, for the Petitioners? failure to present a table containing candidates? names and scores.
(ii) Ground 1 of the petition is incompetent and liable to be struck out, the Petitioners having not complained of the return of the 2nd Respondent who was returned, but the return of the 1st Respondent who was not a candidate in the election and was not returned.
(iii) Ground 5 and the Alternative to Ground 4 of the petition are not cognisable grounds on which an election can be questioned under the Electoral Act 2010 (as amended) and thus ought to be
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struck out.
(iv) The 3rd Respondent in this petition is not existent and its name ought to be struck out.?
On 24/5/2019, the Appellant filed a motion seeking for: –
?1. An order striking out Petition No. EPT/AB/HA/06/2019 for being grossly defective and/or incompetent.
IN THE ALTERNATIVE
2. An order striking out Grounds 1 and 5 as well as the alternative Ground to Ground 4 of the petition together with the paragraphs of the petition flowing therefrom.
3. An order striking out the name of the 3rd Respondent in the petition for being non-existent.?
The motion was predicated on seven grounds and they read thus: –
?1. That the petition is invalid and incompetent having failed to comply with the mandatory provisions of Paragraph 4(1) of the 1st Schedule to the Electoral Act 2010 (as amended).
2. That the petition is invalid and incompetent having not been endorsed with the national Identification Number (NIN) of the Legal Practitioner who signed the petition in strict compliance with the mandatory use of the National Identification Number, Regulation 2017.
?3. That Ground 1 of the petition
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is incompetent and liable to be struck out, the Petitioners having not complained of the return of the 2nd Respondent who was the candidate and was returned at the election, but the return of the 1st Respondent, who was not a candidate at the election and was not returned.
4. That Ground 5 and the Alternative to Ground 4 of the petition are not valid or cognizable grounds to question an election under the Electoral Act 2010 (as amended).
5.That the petition meant for service on the 3rd Respondent in the petition was wrongly served on the All Progressives Grand Alliance who is not a party to the petition.
6. That the 3rd Respondent is a non-existent entity, hence its name ought to be struck out from the petition.
7. It is in the interest of justice to grant this application.?
?
The Petitioners filed a motion on 20/5/2019 seeking for the following: –
?1. An order granting leave to the Petitioners/Applicants to bring this application before the pre-hearing proceedings.
2. An order to amend paragraph 12(1) of the petition by adding the word ?by? between the words ?elected? and ?the? in
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line 1 of the said paragraph to the effect that the said paragraph shall read thus:
?That the 2nd Respondent, declared as elected by the 1st Respondent at the election on the platform of the 3rd Respondent, was not duly elected by a majority of lawful votes cast at the election?.
3. An order to amend the word ?Progressive? to ?Progressives? in the description of the 3rd Respondent in order to read:
?All Progressives Grand Alliance (APGA)?.
4. An order to amend the 5th name in the list of candidates in paragraphs 8 and 10 of the petition to ONYEKWERE MICHAEL UKOHA to tally with the way is (sic) rendered in the description of the parties.?
?
The motion was predicated on 7 grounds. I see no need to re-produce the grounds as they are volubly expressed.
?
In manifestation of its intention or resolve to oppose the Petitioners? motion, the Appellant filed a counter affidavit to the supporting affidavit of the said motion. The Petitioners filed a further and better affidavit to the counter affidavit of the Appellant. Amongst other depositions contained in the said further and better
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affidavit, a proposed amended petition was annexed as Exhibit ?A?. Parties filed written addresses in support of their respective affidavits. Indeed, the Petitioners filed ?reply on point of law? to the written address of the Appellant in opposition to the amendment they (Petitioners) seek/sought.
The Tribunal entertained the motion brought by the Petitioners on 10/6/2019. The notes of proceedings for 10/6/2019 on pages 901-902 of the record read thus: –
?The petitioner (sic) moves his application filed on 24/5/2019 and his further and better affidavit filed thereto for:
1. AN Order granting leave to the Petitioner/Applicant (sic) to bring this application before the pre-hearing proceeding.
2. An Order to amend paragraph 12(1) of the petition by adding the ward (sic) ?by? between the word (sic) ?elected? and ?the? in line (sic) of the said paragraph to the effect that the said paragraph shall read as amended. Madu filed no objection.
Counsel to the 3rd Respondent says he has filed a counter affidavit and written address therewith. He refers to petition 1.6 to read
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paragraph (sic) 4(1)(a) and 5(1) by deleting paragraph 9.
That he is relying on his counter affidavit and written his address. That in paragraph (sic) 5-7 of the supporting affidavit of the Applicant they include progressive instead of progressives.
That Exhibit A is the proposed amendment. That the amendments support are not in the proposed amendment. That at paragraph 8 of the further affidavit and the word Uka remains. That a (sic) page 7 of the proposed amendment, this was to the amendment ?by? adding the word by. That this is to show that they know what they wanted.
He submits that when a person presents two answers of the same thing the Court cannot pick and choose which one to take. He cites the case of YUSUFU VS. OBASANJO 2005 18 NWLR paragraph 956 page 96 and page 2013 e-f.
That the proposed amended document does not present the intended amendment as filed.
That this application should fail for the law is that parties are urged to be consistent in the prosecution of their cases. Citing AJIDE VS. KELANI 1985, 3 NWLR paragraph 12 page 248 and 269 c-d.
The Applicant counsel says in reply that what he has filed
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contains typographical errors and that it is not the intended one which he will file after granting the leave to amend.
RULING
We have considered the facts and submissions of counsel. It is our view that the applicant has exhibited the proposed Amended copy of what he intends to file and it has formed part and parcel of the record of this Tribunal. The said Exhibit A still contains the errors complained of.
We are of the view that the application is self contradictory and self defeating as it is. It is a different thing if the Applicant had waited for the granting of the order. Since the proposed amended copy has been filed, we cannot overlook it. This application is hereby struck out.?
?
Being of the view that the Tribunal ought to have dismissed the motion rather than striking it out, and thereby affording the Petitioners the opportunity to re-file the process (and which the Petitioners have done on 11/6/2019), the Appellant lodged the instant appeal against the ruling of the Tribunal, by a notice of appeal filed on 13/6/2019. The notice of appeal contains two grounds of appeal. The grounds of appeal and their respective particulars
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read thus: –
?GROUNDS OF APPEAL
GROUND ONE
The learned trial Judges of the Tribunal erred in law and same led to gross miscarriage of justice when they struck out the motion the subject matter of this appeal rather than dismiss the same after holding thus:
?We have considered the facts and submissions of Counsel. It is our view that the Applicant has exhibited the Proposed Amended Copy of what he intends to file and it has formed part and parcel of the record of this Tribunal. The said Exhibit A still contained the errors complained of. We are of the view that the application is self-contradictory and self-defeating as it is. It is a different thing if the Applicant had waited for the granting of the order. since the Proposed amended copy has been filed, we cannot overlook it. This application is hereby struck out.?
PARTICULARS OF ERRORS
1. The application was fully argued by the parties on the merit.
2. The learned trial Judges of the Tribunal in their own language ?considered? the facts and submissions of counsel. This further confirms the fact of the motion having been heard on the merit.
3. After considering the facts supporting the applications and the submissions of counsel, the learned Judges of the Tribunal made their findings.
4. The learned Judges of the Tribunal finally came to a determination that the application is not only self-contradictory but self-defeating.
5. This finding was on the merit of the application after the Judges of the Tribunal noted that they had considered the facts and submissions of the counsel.
6. Having held as the learned trial Judges of the Tribunal did, they were very wrong in striking out the application rather than giving an order of dismissal.
GROUND TWO
The learned trial Judges of the Tribunal erred in law and caused a gross miscarriage of justice when they struck out the Petitioners? motion rather than dismiss same, thereby allowing the Petitioners to refile the motion for a second determination.
PARTICULARS OF ERRORS
1. The learned trial Judges of the Tribunal by their order, opened the gate for the Petitioners to re-file the motion which they had already found to be self-contradictory and self-defeating.
2. The Petitioners have now refiled the same
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motion and are ostensibly seeking the same reliefs.
3. But for the wrong order made by the learned Judges of the Tribunal, the subsequent application would have been an abuse of Court process.
4. Unless this Court sets aside the erroneous order made by the learned Judges of the Tribunal, the Petitioners will have a second bite at the cherry and same will prejudice the Appellant.
5. The petition, subject matter of the motion is an election petition which is sui generis and does not admit of any indolence from parties and their counsel.?
The reliefs which the Appellant seeks from this Court as contained in the notice of appeal are: (i) an order allowing the appeal; (ii) an order setting aside the order striking out the motion, the subject matter of this appeal and in its stead, substituting it with an order of dismissal; (iii) an order directing the Tribunal not to entertain the same motion which has been re-filed by the Petitioners; (iv) an order striking out the motion re-filed by the Petitioners on 11/06/2019 and/or setting aside the decision of the lower Tribunal on the motion; and (v) cost of the appeal.
?
The appeal was
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entertained on 1/7/2019 and learned leading senior counsel, Emeka Etiaba, SAN; in urging this Court to allow the said appeal, adopted and relied on Appellant?s brief of argument dated 18/6/2019 and filed on the same date as well as Appellant?s reply brief of argument dated 28/6/2019 and filed on the same date.
In the same vein, learned counsel Ukpai O. Ukairo, adopted and relied on the brief of argument of the 1st and 2nd Respondents (i.e. Petitioners) dated 24/6/2019 and filed on the same date, in urging the Court to dismiss the appeal. The other parties on record in the appeal, did not file briefs of argument.
?
The lone issue formulated for the determination of the appeal in the brief of argument of the Appellant reads thus:-
?Having regard to the hearing, finding and/or holding of the Tribunal, whether the learned trial Judges were not wrong in striking out the motion instead of rendering an order of outright dismissal of the motion.?
?
Suffice it to say that the Appellant canvassed arguments in elaboration of, or adding more flesh as it were, to its position as articulated in the grounds of appeal and their
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respective particulars, regarding its position that the Tribunal having entertained the Petitioners? motion seeking to amend their petition, was wrong in striking out the said motion giving its (Tribunal?s) refusal to grant same. That the Tribunal ought to have dismissed the motion for amendment, brought by the Petitioners.
On the other hand, the lone issue formulated for the determination of the appeal in the brief of argument of the Petitioners (and who are the beneficiaries of the order of the Tribunal striking out their motion) read thus: –
?Whether the Court was right in striking out the motion for amendments rather than dismissing same, upon discovery that the proposed amended petition repeated the mistakes sought to be remedied by the motion
In articulating their position regarding the correctness of the striking out of their petition by the Tribunal, the Petitioners portrayed the Tribunal as having not decided their motion on the issues distilled by them and the Appellant respectively, for the determination of the said motion in their written addresses. It is the stance of the Petitioners, that the sole basis
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for the decision of the Tribunal was the “disconnect” between the terms of the amendment and the proposed amendment which were incompatible with the rules of practice and procedure. That the mistake (which I understand to be the “disconnect”) was typographical and evidently was that of counsel. That the path of justice having regard to the state of affairs, demands that the said mistake of counsel should not be visited on the litigant. It is also the stance of the Petitioners that the contention of the Appellant that the findings made by the Tribunal were on the merit, is not true/correct. This is because the findings were procedural in nature to wit: “that the amendment was not properly captured in the proposed amended petition”. It is the position of the Petitioners that it is not only the incompetence of a process, lack of jurisdiction of Court or locus standi of a party, that will warrant the striking out of an application. That a process cannot be struck out for a procedural error as in the instant case. That though there was a hearing the decision in the motion was not on the merit and accordingly, they (Petitioners)
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necessarily have a right to re-file a fresh application for amendment, and this they have done. That the position of the law is to the effect that when an order of dismissal is made by a Court following a hearing that is not on the merit, then such an order is in law nothing more than a mere striking out. The Petitioners further submitted that the Tribunal was perfectly right to have struck out their motion upon noticing its non-compliance and after listening to their counsel. That the Tribunal in doing this, adhered to the position of doing substantial justice; which is the focus or objective of our law, as enjoined by the Supreme Court and not technical justice. It is the stance of the Petitioners to the effect that the fact that the motion the Tribunal entertained was filed in an election petition which is sui generis, does not alter the clear position of the provisions of Paragraph 53(1)(4) of the Electoral Act 2010 as amended. That the Tribunal neither departed from the trite position of the law nor made nonsense of the principles of stares decisis but clearly upheld the law and settled principles.
In its reply brief of argument, the Appellant
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maintained its position that the Petitioners’ motion was entertained by the Tribunal on the merit. Dwelling, specifically on the position of the Petitioners that the Tribunal did not predicate its decision on the issues raised by the parties in their respective written addresses (and which position the Appellant did not concede), the Appellant submitted to the effect that such infraction or breach, can only be challenged by way of an appeal or cross appeal. That the Petitioners having not done this, are deemed to have accepted the said infraction/breach; and are bound by the decision of the Tribunal. It is also the stance of the Appellant that the position of the Petitioners that there was a “disconnect” only reinforced the position that the motion before the Tribunal ought to have been dismissed. Furthermore, and citing cases considered relevant, the Appellant submitted to the effect that mistake of counsel cannot avail the Petitioners in the circumstances of the motion the Tribunal ruled on. It is equally the stance of the Appellant that it never urged the Tribunal to do technical justice. That all it did was to urge the Tribunal to dismiss
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the Petitioners? motion on the merit; while the Petitioners urged the Tribunal to grant the same.
Having regard to the narration made herein before, I am of the considered view that the issue formulated for the determination of the appeal by the Appellant is more appropriate than that formulated by the Petitioners. This is because, it is glaring from the issue formulated by the Petitioners and their submissions thereon, that the said Petitioners who never sought expressly or indirectly for an order striking out their motion at any time before the Tribunal ruled on the same, simply want to take advantage of the consequence or consequences of a ?striking out order? which having regard to the Appellant?s position the Tribunal made improperly.
?
Having regard to the antecedents of the motion for amendment the Tribunal entertained, as have been copiously highlighted in this judgment, and cases cited by the Petitioners in support of their stance that the Tribunal was right to have struck out the motion in question, I am of the considered view that the Petitioners cannot be said to be controverting the position of the law as portrayed
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by the Appellant that when a motion for amendment, such as the one entertained by the Tribunal is ?heard on the merit?, the same cannot be struck out, if it cannot be granted. In other words, I do not understand the Petitioners as disputing the position of the Appellant that the Tribunal was wrong in striking out the motion it entertained; once the same was heard on the merit and found to have failed. Against this backdrop, I am of the considered view, that the simple issue/question to resolve is, whether or not the Petitioners? motion was entertained or heard on the merit prior to the Tribunal making an order striking out the same?
In my considered view, what the entertainment of a matter on the merit connotes was clearly stated or expounded by the Supreme Court, per Ayoola, JSC; in the case of A-G ANAMBRA STATE V. OKEKE (2002) LPELR ? 604 (SC). His lordship said thus: –
?The respondents have contended that the issue before the Court of Appeal was whether the application of appellant, though dismissed without hearing was dismissed on its merits. A hearing may be said to be on the merits where the issues of fact or law
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or both, between the parties are fought out to a final conclusion binding upon the parties. The preliminary objection which resulted in the dismissal of the application without a hearing was that the application for a stay of proceedings have (sic) not been supported by any admissible evidence of the filing of another writ of summons on which appellant relied for his application …. the learned Judge dismissed the application because there was no evidence in support. I think this is a hearing of the application on its merits. There is no way the preliminary objection would have been argued without a consideration of the application on which it is based. It is conceded that not all aspects of the application for stay of proceedings might have been considered in the objection, nevertheless since consideration of the point of law finally decided the rights of the parties, it was a decision on the merits. It follows therefore that there was before the Court of Appeal, an appeal against a decision on its merits.”
Also, in the case of NIWA V. SPDC (NIG) LTD (2008) LPELR ? 1963 (SC), the Supreme Court, dwelling on when a matter can be said to have been
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heard on the merit, per Tobi, JSC; stated thus: –
?Merit here means merit of the case. Merit of a case is the substantive consideration to be taken into account in making a decision in contrast to extraneous or technical points especially of procedure. See Garner, A Dictionary of Modern Legal Usage, 2nd edition, page 557. Merit, as a legal term, refers to the strict legal rights of the parties. It is the substance, element or ground of a cause of action or defence. See Black’s Law Dictionary, 6th edition, pages 989 and 990. In other words, merit is the real or substantial ground of an action or defence in contradistinction to some technical or collateral matter raised in the course of the case. It is in practice a matter of substance as distinguished from a matter of form. A matter of adjectival or procedural nature is generally not on the merits.?
?In my considered view, it is clear as crystal from the narration made herein before, and particularly the ruling of the Tribunal, that the Petitioners? motion for the amendment of their petition and in respect of which the said Petitioners and the Appellant filed affidavit evidence, was
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glaringly entertained on the merit and that the Tribunal made serious or weighty findings that the said motion was ?self-contradictory? and ?self-defeating?. The Tribunal never pretended or portrayed itself as striking out the said motion for any deficiency in form or because it was initiated by or pursuant to a wrong procedure. This being the position, the Tribunal having found the Petitioners? motion to be self-contradictory and self-defeating, simply ought to have dismissed the same. The Petitioners in my considered view would appear to have deliberately misapprehended the proceedings before the Tribunal regarding their motion that the said Tribunal decided to strike out. I am also of the considered view that the Tribunal having entertained the Petitioners? motion on the merit, it becomes obvious that mistake of counsel (which in any event was never urged on the Tribunal) cannot be a justification for the Tribunal in not making the correct or proper order it should have made to wit: an order of dismissal, having seen that it could not grant the said motion. Indeed, I consider it appropriate to observe that counsel who has
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not handled his client?s case properly, should be very slow in flaunting ?mistake of counsel? as an excuse. This is because I am of the considered view, that a counsel who neglects to exhibit the required or appropriate prowess in law, in the handling of his client?s case, is simply bringing to the fore his own ineptitude, which is unpardonable. In this regard, see the case OKPE V. FAN MILK PLC (2016) LPELR ? 42562 (SC). See also the case of IYAWE V. MENE (2014) LPELR ? 22611 (CA) wherein I stated thus: –
“I believe that it is high time learned counsel realized that there is a world of difference between ineptitude, or incompetence of counsel, and mistake or inadvertence of counsel. See the judgment of this Court in THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY V. ABDULLAHI (2010) ALL FWLR (Pt.507) 179 at 195 – 196 whereat I stated thus: -“The law is definitely settled that no litigant should be punished for sin or mistake of counsel. It is however also the law that “sin of counsel” or “mistake of counsel” is not a magic wand and it ought to be appreciated that Court do not and are indeed not to condone
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inordinate delay or lack of diligence on the part of litigants and counsel. In this regard, I cannot but refer to the case of IROEGBU v. OKWORDU (1990) 6 NWLR (Pt.159) 643 which shows that the Supreme Court has been careful in the application of the principle that Courts do not normally punish a litigant for the mistake or inadvertence of counsel. In this regard Nnaemeka-Agu, JSC said at page 669 thus: – “I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for the mistake of his counsel…but in my opinion, the Courts will not regard this as a panacea in all cases. The Courts must be satisfied not only that the allegation of fault of counsel is true and genuine but also that it is availing, having regard to the circumstances of the particular case”.
I do not see how learned counsel for the Respondent who did not conduct the case of this client in accordance with settled procedure governing the conduct of trials or hearings and who failed to tender as Exhibits, the pieces of documentary evidence required for the successful prosecution of the case which documentary evidence learned
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counsel had in his possession while conducting his case, can properly find refuge in the principle of “mistake or inadvertence of counsel”. Learned counsel for the Respondent was clearly inept in the handling of his client’s case before he closed it, and even at that, he did not resort to the proper procedure in attempting to rectify the situation, as ably demonstrated by learned counsel for the Appellants in the Appellants’ Brief of Argument. To countenance the principle of mistake or inadvertence of counsel introduced into the instant case in the peculiar circumstances of the case, is nothing short of creating the impression that a counsel can seek for the reversal of the decision/judgment of a lower Court on the ground that he did not properly conduct the trial. This cannot be in the interest of justice by any standard.”
I do not understand the Petitioners as arguing that the position of the law in respect of amendment of pleading where or when it has been refused by a Court, is that they can rightly bring a second or another application for amendment on the same ground or grounds as the one that was unsuccessful. If the Petitioners had this trite
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position of the law in mind, they would have known that they can hardly file the same application for the amendment of their petition on the same ground or grounds as the initial or first one they filed once the same was entertained on the merit and not granted. In any event, the implied concession or acknowledgment by the Petitioners of the position of the law to the effect that an application for the amendment to the pleading of a party in a case where or when it has been refused or where or when it fails, upon its consideration on the merit, in my considered view, has rendered the position of the said Petitioners in the instant appeal prostrate or hollow, given the finding I have made that the Tribunal entertained the Petitioners? motion for amendment before it, on the merit. The Tribunal having entertained the Petitioners? motion on the merit, and finding it not grantable, should have dismissed it. Had the Tribunal acted as it should have done, the line of action available to the Petitioners if they are dissatisfied with the refusal of the Tribunal to have granted the amendment which they sought, given the materials they presented before the
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said Tribunal, would have been to lodge an appeal against the refusal of the amendment they sought. Indeed, I am of the considered view that it is in the knowledge of the position of the law that any particular application for amendment that is not grantable and accordingly dismissed, cannot be represented to the Court on the same grounds, and in order to aid the Petitioners (who never at any time during the hearing of their motion, seek for its withdrawal), re-file the same that the Tribunal willy-nilly or arbitrarily struck out the same.
?I can only say that the Tribunal in not dismissing the motion of the Petitioners giving its findings that the said motion was self-contradictory and self-defeating, must have thought that it was entertaining a substantive civil case in which the concept of ?non-suit? is applicable, or was influenced by the said concept. Even at that, I cannot but observe that the Tribunal never complied with the procedure relating to non-suit which is a relief/order provided for under Order 21 of the Civil Procedure Rules of the Federal High Court, which is the default rules applicable before the Tribunal. The position of
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the law in respect of non-suit, is to the effect that it is wrong for a Court whose rules of civil procedure provide for such a relief, to order a non-suit, or strike out a case, or order the retrial of a case, without calling on parties to address it on the desirability of such an order. See the case of EGBUCHU V. CONTINENTAL MERCHANT BANK PLC (2016) LPELR ? 40053 (SC) amongst many others. It is clear from the portions of the notes of proceedings cum ruling of the Tribunal re-produced herein before and underlined, that learned counsel for the Appellant made observations which ordinarily could have provoked an application for the withdrawal of the motion before the Tribunal by the Petitioners, if they were so minded and thereby provide some legal basis for the decision of the Tribunal to strike out the motion it had entertained on the merit. Though, whether or not such an application would have been granted is totally another kittle of fish, the Petitioners by making the same, in my considered view, would have created a situation whereby the other parties to the instant motion, particularly the Appellant, would have been heard in response, regarding the
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propriety of such an application for withdrawal, and whether or not the instant motion could be properly struck out by the Tribunal after it had entertained the same on the merit. Suffice it to say therefore, that even if the Tribunal was labouring under the concept of non-suit without specifically mentioning the term, (and this is however not to say that order of non-suit applies to a motion), the said Tribunal having entertained the motion in question on the merit, could not have suo motu struck out the same, without calling for an address on the issue. The Tribunal having entertained the Petitioners? motion on the merit, was therefore bound in law to have dismissed the same having found it not grantable.
Flowing from all that has been said, is that I am therefore of the considered view that the Tribunal having entertained the Petitioners? motion for the amendment of their petition on the merit, and having found the same to ?self-contradictory? and ?self-defeating?, it should have dismissed the said motion and not to have suo motu made an order striking out the same and thereby creating a situation that has resulted
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in the Petitioners filing a similar motion for amendment a second time (as admitted by them) and which is clearly wrong in law. The issue formulated by the Appellant for the determination of the appeal is accordingly resolved in its favour.
In the final analysis, the instant appeal is meritorious and it succeeds. It is hereby allowed as prayed by the Appellant. Accordingly, the order made by the Tribunal striking out the Petitioners? motion the subject of the instant appeal, is set aside and an order dismissing the same, is substituted therefor. Furthermore, the Tribunal is not only ordered not to entertain the same motion for amendment which the Petitioners have filed but the said motion re-filed by the Petitioners on 11/6/2019, is struck out. Notwithstanding that this Court by law has the duty of ensuring that an appeal if successful is not rendered nugatory, and will make an order to that end, (see LEKWOT V. JUDICIAL TRIBUNAL ON CIVIL AND COMMUNAL DISTURBANCES IN KADUNA STATE (1997) LPELR ? 1778 (SC); an order setting aside the decision of the Tribunal in or on the re-filed motion will however not be made as there is no decision of the
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Tribunal in respect of the re-filed motion in the record and/or as such decision has not been placed before the Court by way of additional record. The law is trite that no Court in this country can set aside, nullify or quash any proceedings or decisions not before it.
Costs in the sum of N100,000.00 is awarded the Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
?
?
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Appearances:
Emeka Etiaba, SAN with him, C.H. OsujiFor Appellant(s)
U.O. Okairo with him, Zach Okoronkwo and Esther Wosu (Mrs.) for 1st and 2nd Respondents.
M.S. Nwani for 3rd Respondent.
Carol Dike-Okoroafor for 4th Respondent
For Respondent(s)
Appearances
Emeka Etiaba, SAN with him, C.H. OsujiFor Appellant
AND
U.O. Okairo with him, Zach Okoronkwo and Esther Wosu (Mrs.) for 1st and 2nd Respondents.
M.S. Nwani for 3rd Respondent.
Carol Dike-Okoroafor for 4th RespondentFor Respondent
