ALL PROGRESSIVES GRAND ALLIANCE & ANOR. V. CHIEF CHRISCATO AMEKE & ORS.
(2011)LCN/4809(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/E/EPT/22/2011
RATIO
GROUNDS OF APPEAL/PARTICULARS OF A GROUND APPEAL: FUNCTION OF A GROUND OF APPEAL AND PARTICULARS OF A GROUND OF APPEAL; WHETHER THE PARTICULARS CAN ENLARGE THE SCOPE OF A GROUND OF APPEAL
… the main function of a ground of appeal is to bring out clearly the complaint an appellant has against the decision appealed against. “Particulars” of a ground of appeal as the name implies on the other hand serves one purpose only; and it is to particularize in specific and clear language the ground(s) of appeal. Hence “Particulars” cannot enlarge the scope of a ground of appeal. See MADUMERE V. NWOSU (2010) All FWLR (Pt. 545) 263. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ELECTION PETITION: WHETHER PRE-ELECTION MATTERS ARE SUITED FOR ELECTION PETITION
This Court has in the cases cited in the Brief of Argument of the 2nd Respondent (and which have also been set out in this judgment) consistently held that pre-election matters are not suited for Election Petitions. An Election Petition is to challenge the return or declaration of the winner of the election by INEC. When as in the instant Petition, averments therein prominently or noticeably throw up the issue as to which of two candidates of the same party that actually won the questioned election, or was the proper or qualified candidate of the party in the election, then, the Petition inextricably raises pre-election matters which are not suited for the Petition and therefore have to be removed. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ADJOURNMENT: PRINCIPLE GOVERNING THE DISCRETIONARY EXERCISE OF THE COURT TO GRANT AN ADJOURNMENT
There is no dearth of authorities concerning “adjournment” in the law reports. It is clear from the authorities that though the question of adjournment is within the discretion of a court, the court in the exercise of the discretion is however bound to consider all the circumstances of the case in ensuring that the discretion in this regard, is judicially and judiciously exercised. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt.1) 143; and NWADIOGBU V. ANAMBRA LIMO RIVER BASIN DEVELOPMENT AUTHORITY (2011) All FWLR (Pt. 562) 1612. It is also clear from the authorities that it is for a party seeking for an adjournment to furnish the court with cogent, credible and compelling reason(s) which upon consideration by the court would warrant the exercise of its discretion in his favour. This is why a court, though not willy-nilly bound to grant an adjournment, must still exercise extreme caution in dismissing a suit in limine. See ADENIYI V. AKINYEDE (2010) All FWLR (Pt. 503) 1257. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
INTERFERENCE WITH DISCRETION OF A LOWER COURT: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION BY A LOWER COURT TO GRANT AN ADJOURNMENT
The position of the law is that the decision of a court whether or not to grant an adjournment being an exercise of discretion by the court in question, an appellate court will not ordinarily interfere with its exercise. An appellate court will however interfere with the exercise of discretion by a lower court, where the court or tribunal acted out of misconception of law or misapprehension of facts, in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant, or where it exercised or failed to exercise the discretion on wrong or inadequate materials, and in all other cases where it is in the interest of justice to interfere. See UNIVERSITY OF LAGOS V. AIGORO (supra). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
2. CHINEDU FRANCIS IDIGO Appellant(s)
AND
1. CHIEF CHRISCATO AMEKE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. MR. TONY OKEY NWOYE
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decisions delivered on 27/7/2011 and 4/8/2011 respectively, by the National and State Houses of Assembly Election Tribunal, Awka, Anambra State, (hereafter simply referred to as “the Tribunal”). The decision of the Tribunal delivered on 27/7/2011 appealed against, is as contained in the ruling delivered on the same date in respect of a motion on notice on notice dated 27/6/2011 and filed on 1/7/2011, brought by the 1st Respondent. The decision of the Tribunal delivered on 4/8/2011 appealed against, is as contained in the ruling delivered on the same date, sequel to the observation by the Tribunal that “pre-hearing would seem to have commenced in this matter without an application by the learned counsel for the petitioner (sic) asking the Tribunal to set it down for pre-hearing under paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). In other words, petition was set down for pre-hearing on 12/7/2011 when it came up before the Tribunal for mention, upon the petitioner’s (sic) counsel informing the Tribunal that pleadings had closed in the matter.”
The Appellants as Petitioners instituted Petition No. EPT/AN/NAE/HR/33/2011 before the Tribunal questioning the election held on 26/4/2011 for the National Assembly in relation to Anambra East and West Federal Constituency of Anambra State. In the Petition, the Appellants set out the names of the candidates that participated in the questioned election and averred that at the end of the questioned election, the 2nd Respondent returned the 1st Respondent as the winner of the election. Having made other averments in the Petition, the Appellants equally set up a case to the effect that the 3rd Respondent not only claims and purports to be a candidate of the 4th Respondent in the questioned election, but that he in fact participated in the questioned election. It was also the contention of the Appellants, that neither the 1st Respondent nor the 3rd Respondent was validly or lawfully elected/returned as the winner of the election.
In the premises of the averments in the Petition, the Appellants prayed the Tribunal for the reliefs set out in paragraph 21 thereof. The reliefs read thus:-
“21A
i. That it be determined that neither the 1st Respondent nor the 3rd Respondent was duly elected by the majority of lawful votes cast in the Federal House of Representatives election held on 26th April 2011 for Anambra East and West Federal Constituency, and that the return of the 1st Respondent is void.
ii. An order setting aside the return of the 1st respondent as the winner of the said election as well as the certificate of return issued to him.
iii. That it be declared that the Petitioners scored the highest number of valid votes cast in the Federal House of Representatives election held on 26th April 2011 for Anambra East and West Federal Constituency, and satisfied all the requirements of the applicable laws.
iv. An order that the 2nd Petitioner be declared as having been validly elected or returned and that he be issued with a certificate of return by the 2nd respondent forth with.
The Petitioners pray alternatively and ONLY in the alternative to 20(A) as follows:-
21(B)
i. That it be determined that the elections conducted in the following areas Eziagulu Outward, Nsugbe Ward 2, College of Agric. Igbariam Ward, Oguoji Primary School, Ama Ubaru, Amaeziafor Health Centre, Ogwugwuoda, Obu Gad Poll Unit Aguleri Ward 1, Umeekete Poll Unit, Umuokpoto Poll Unit Umueri Ward 2, Okpiyiri Poll Unit Enugu Oyu Ward, Iwunor Square 2 Poll Unit, Ama Isikwe Poll Unit, Okpaga Camp Poll Unit Umueze Anam Ward, Community Primary School Odekpe 1 Olumbabasa Odey Ward, Community Primary School Odekpe 2, Community Primary School Igbokenyi 2, Community Primary School Igbedor 3, Odomogu Town Hall, CPS Odeh were not conducted substantially in accordance with the principle of the Electoral Act and that the none compliance substantially affected the result of the election.
ii. An order nullifying the elections conducted in the aforesaid areas.
iii. An order that a re-run/fresh election be conducted in the aforesaid areas with such time period as the court may deem fit to appoint.
21(C) The Petitioners pray alternatively and only in the alternative to 20(A) & (B) as follow:
a. That it be determined that the 1st and 3rd respondents were at the time of the election, not qualified to contest the election as both, were, contrary to the provisions of the enabling laws, unlawfully sponsored by one political party, to wit, the 4th Respondent.
b. That it be determined that the 4th Respondent’s participation in the National Assembly election of 26th April 2011 in Anambra East and West Federal Constituency is null, void and of no effect, in that contrary to the provisions and sprit/intendment of the enabling laws, it simultaneously sponsored two candidates in the aforesaid election.
c. That it be determined that the act of the 2nd Respondent in allowing/authorizing the 4th Respondent to participate and/or sponsor two candidates to wit 1st and 3rd respondents, in the said elections constitute a gross irregularity that substantially affected the conduct and outcome of the election.
d. An order setting aside the participation of the 1st, 3rd and 4th Respondents in the aforesaid election, as well as the return of the 1st Respondent as the purported winner of the election.
e. An order that fresh elections be conducted in Anambra East and West Federal Constituency for the other candidates that validly participated in the aforesaid election of 26th April 2011.”
In the 1st Respondent’s motion on notice hereinbefore mentioned, the Tribunal was prayed for:-
“(a) An Order striking out this petition No. EPT/AN/NAE/HR/33/2011 between ALL PROGRESSIVE GRAND ALLIANCE & ANOR AND CHIEF CHRISCATO AMEKE & ORS dated Tuesday the 17th day of May 2011 and filed on the same date.
AND/OR
(b) An Order striking out paragraphs 4, 5, 8, 9(a) and (c); 10(A)(1), (4), (5), (6), (7); 11(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and (l); 12(a), (b), (c), (d), (f), (g); 13(a); 14(i) and (ii); (17), 18 and 20(C)(a), (b) and (c) of the petition bordering on pre-election matters, unpleaded facts on corrupt practices, as the Tribunal has no jurisdiction to entertain same for failure to join parties whose presence is necessary for an effective and total adjudication of this petition.”
The grounds of the application as set out in the motion are:-
“(a) The petition is founded on matters squarely bordering on pre election dispute.
(b) The matters so raised within the petition do not qualify as grounds specified by the Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria 1999.
(c) The Petitioners have pleaded facts which do not constitute ground upon which this petition is founded.
(d) The Petitioners have failed to join parties whose presence is necessary for an effective and justicious disposal of this petition.”
In its ruling, in respect of this motion, the Tribunal refused prayer (a) It however granted prayer (b) in part as the Tribunal struck out paragraphs 4, 5, 8, 10(A)(1), (2), (3), (4), (5), (6) and (7), 17, 18, 21(A)(1), 20(C)(a), (b), (c) and (d); as well as Ground 9(a) and (c); in the Petition.
In the ruling delivered on 4/8/2011, the Tribunal found and held that the Petition is an abandoned Petition and dismissed the same pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended).
The Petitioners (now Appellants) being dissatisfied with the striking out of some paragraphs and ground of the Petition; and the striking out of the Petition as an abandoned Petition, appealed against the decisions of the Tribunal in this regard, by a Notice of Appeal dated 18/8/2011 and filed on 22/8/2011. The Notice of Appeal contains 8 grounds of appeal. The grounds of appeal shorn of their respective particulars read thus:-
“GROUND 1
The tribunal erred by holding that paragraphs 9(a) and 10(A)(1) – (7) raised pre-election matters.
GROUND 2
The tribunal erred by striking out the relief sought in paragraph 20(c) of the petition.
GROUND 3
The tribunal erred by striking out the 4th respondent as a party in the petition.
GROUND 4
The Honourable Tribunal erred in Law in its conclusion that the appellants does (sic) not have locus standi to raise the question of double candidature of the 1st and 3rd Respondents.
GROUND 5
The Honourable Tribunal erred in law and caused a miscarriage of justice when it failed to first consider and rule on the application for adjournment made by the Appellants (sic) counsel to enable him file an affidavit to controvert the non-existence of a copy of the application for issuance of pre-hearing notice raised suo motu by the tribunal, before taking further steps in the proceedings.
GROUND 6
The Honourable Tribunal erred in law in refusing the Appellants (sic) application for an adjournment to enable them respond adequately to the issue raised suo motu by the tribunal.
GROUND 7
The tribunal misdirected itself and came to a wrong decision which has occasioned a miscarriage of justice when it held that:-
As noted earlier there is no copy of any application by letter in the tribunals (sic) file neither is there any reference to any such “application” by any of the learned counsel for the petitioner (sic) on any of the dates this petition had came (sic) up before the tribunal i.e. 12/7/2011, 19/7/2011 and 27/7/2011 until today when this issue was raised suo motu by the Tribunal the tribunal therefore finds and holds that no application either by letter or any other mode for issuance of pre-hearing was filed by the petitioner (sic) in this matter.
GROUND 8
The tribunal erred in law in its conclusion that an application by way of a letter for issuance of pre-hearing notice was improper.”
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 2/9/2011 and filed on 5/9/2011. Appellants filed Reply Briefs to the Briefs of Argument of the 1st and 2nd Respondents respectively. The two Reply Briefs are dated 14/9/2011 and filed on the same date. All the Briefs filed in the appeal by the Appellants were settled by O.A. Obianwu, Esq., SAN; A.C. Anaenugwu, Esq.; H.C. Onwuegbuke, Esq.; G.B. Obi, Esq.; T.U. Ogunji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The Brief of Argument of the 1st Respondent dated 8/9/2011 and filed on 9/9/2011 was settled by Prof. Ilochi Okafor, SAN; Arthur Obi-Okafor, SAN; F.I. Aniukwu, Esq.; and J.O. Nwankiti, Esq. That of the 2nd Respondent dated 8/9/2011 and filed on 9/9/2011 was settled by O.J. Nnadi, Esq., SAN; S.O. Ibrahim; N. Frank Megwa (Mrs.); O. Ikoroha (Mrs.); and F.U. Abazuonu. That of the 3rd Respondent dated 8/9/2011 and filed on the same date was settled by C. Chuma Oguejiofor, Esq.; while the Brief of Argument of the 4th Respondent dated 8/9/2011 and filed on 9/8/2011 was settled by Clems Ezika, Esq.; Ernest Nwoye, Esq.; Nicholas Asuzu, Esq.; Victor Nwachukwu, Esq.; Onwuemena Mmaduka, Esq; and Kingsley Onunkwo, Esq.
The 1st and 2nd Respondents respectively, filed separate motions challenging the Reply Briefs the Appellants filed in response to their Briefs of Argument. The Court directed that the Appellants and the afore-mentioned 1st and 2nd Respondents should file written addresses in respect of the motions. These parties duly complied with the order of the Court. In this regard the 1st Respondent on 22/9/2011 filed a written address of the same date, in respect of his motion dated 16/9/2011 and filed on 19/9/2011; while the 2nd Respondent filed on 22/9/2011 a written address dated 21/9/2011 in respect of its motion dated 16/9/2011 and filed on 19/9/2011 , The Appellants filed their written address in response to each of the written addresses of the 1st and 2nd Respondents. The Appellants’ two written addresses were filed on 22/9/2011 and both bear the same date.
At the hearing of the appeal on 22/9/2011, parties through their respective counsel duly adopted and relied on their Briefs of Argument as hereinbefore identified as their arguments in respect of their positions in the appeal. Learned counsel for the 1st and 2nd Respondents respectively, also adopted and relied on the written addresses in respect of their aforementioned motions on notice and urged the Court to grant the same; while the Appellants equally adopted and relied on their written addresses in opposition of the motions on notice, in urging the Court to dismiss them.
The five issues formulated for determination in the appeal, in the Appellants’ Brief of Argument read thus:-
“(i) Whether the Tribunal was right to strike out paragraphs 4, 5, 8, 10(A) (1) (2) (3) (4) (5) (6) (7), 17, 18, 21(A)(1), 20(C), a, b, c, d and grounds 9(a) and (c) of the petition. GROUNDS 1, 2, 3.
(ii) Whether the refusal of the Tribunal to first determine the application for Adjournment before proceeding further has not occasioned a miscarriage of justice in the circumstances – GROUND 5.
(iii) Whether the Tribunal judiciously and judicially exercised its discretion when it refused the application for adjournment having regard to the entire circumstances – GROUND 6.
(iv) Whether the Tribunal was right to have treated the petition as an abandoned petition – GROUNDS 7 AND 8
(v) Whether the Tribunal was correct to have struck out the name of the 4th Respondent from the petition – GROUND 4.”
The issues which the 1st Respondent formulated for the determination of the appeal in his Brief of Argument read thus:-
“1. Was the Tribunal below right in the approach it adopted in the proceedings by which after refusing the Application for Adjournment it proceeded to rule on the issue which it raised suo motu to wit:
a. whether pre-hearing session could properly have been constituted without an application;
b. whether the tribunal does not lack jurisdiction to continue with the hearing of the Petition.
2. If the answer to issue 1 above is in the affirmative, was the Tribunal below right in refusing the Appellants’ Application for Adjournment and dismissing the Petition.
3. Whether the Tribunal was right in striking out Paragraphs 4, 5, 8, 10(A) (1) (2) (3) (4) (5) (6) (7), 17, 18, 21(A)(1)20(C), A, B, C, D and Grounds 9(A) and (C) of the Petition.”
The issues formulated for the determination of the appeal in the 2nd Respondent’s Brief of Argument are:-
“(1) Whether the Tribunal was right to have struck out paragraphs 4, 5, 8, 10(A) (1) (2) (3) (4) (5) (6) (7), 17, 18, 21(A)(1), 20(C), a, b, c, and grounds 9(a) and (c) of the petition at page 1048 of the record of appeal and consequently striking out the name of the 4th Respondent from the petition. (Grounds 1, 2, 3 and 4 of the Notice and Grounds of Appeal).
(2) Whether the Tribunal rightly refused to determine the application for adjournment by the Appellants’ Counsel and did the Ruling of the Tribunal of 4th August, 2011 whereby the Tribunal first ruled on the application for adjournment refused the application for adjournment and thereafter ruled on the competence of the petition without any application for pre-hearing Notice filed by the parties in the petition, occasion (sic) a miscarriage of justice for the Appellants. (Grounds 5 and 6 of the Notice and Grounds of Appeal).
(3) Whether the Tribunal was right to have treated the petition as an abandoned petition (Grounds 7 and 8 of the Notice and Grounds of Appeal).
The 3rd Respondent formulated a sole issue for the determination of the appeal in his Brief of Argument. The issue reads thus:-
“Whether the tribunal below had the jurisdiction to hear the petition in the absence of any indication that any application was made by the parties whether by letter or by motion for the pre-trial forms to issue as provided for in paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended and was the tribunal right in treating the petition as an abandoned petition in the circumstances.”
The 4th Respondent formulated two issues for the determination of the appeal in its Brief of Argument. They read thus:-
“1. Whether the Tribunal was right to have struck out the name of the 4th Respondent from the petition?
2. Whether the Tribunal was right to have dismissed the petition as an abandoned petition?”
The appeal will be resolved upon the issues formulated for its determination by the Appellants. This is because the issues not only articulate the grievances of the Appellants against the decisions of the Tribunal, but also as the issues in my considered view clearly cover or encompass the issues formulated by each of the Respondents.
Two decisions of the Tribunal are the subject matter of the instant appeal. I will start the consideration of the appeal as it relates to the decision of the Tribunal delivered on 27/7/2011 , as it is the decision that is first in time.
APPELLANTS’ ISSUE 1
This issue relates to the decision of the Tribunal delivered on 27/7/2011 in respect of the motion on notice brought by the 1st Respondent. In its ruling in question the Tribunal struck out paragraphs 4, 5, 8, 10(A) (1), (2), (3), (4), (5), (6), and (7), 17 , 18, 21(A)(1), 20(C)(a), (b), (c) and (d); as well as Grounds 9(a) and (c) of the Petition. Dwelling on the issue, the Appellants submitted to the effect that the Tribunal ought to have given the averments in the Petition a communal reading in order to determine the issues raised therein and that this the Tribunal failed to do. The case of Pan Asian African Co. Ltd v. National Insurance Corp. (Nig) Ltd (1982) All NLR 229 at 242 amongst others was cited in aid. Having set out in extenso the averments in various paragraphs of the Petition, the Appellants submitted to the effect that if the Tribunal had given the averments in the paragraphs it struck out a communal reading, it Tribunal would have arrived at the only conclusion that they (i.e. Appellants) are complaining about the illegal dual candidature or joint participation of the 1st and 3rd Respondents in the questioned election. That the fact that they (i.e. Appellants), pleaded facts leading to the joint participation or joint candidature of the 1st and 3rd Respondents during the election did not affect the crux of their complaint in the Petition. It is the contention of the Appellants that the joint or double candidature of the 1st and 3rd Respondents arose from the election; hence both of them were claiming to have won the election. The Appellants submitted that the cases the Tribunal relied upon in striking out paragraphs of their Petition did not deal with the situation, as in the instant Petition. It is also the submission of the Appellants that the Tribunal ought to have been guided by the decision of the Supreme Court in the case of Hope Democratic Party v. INEC (2009) 8 NWLR (Pt. 1143) 297. The Appellants concluded their argument on the issue by submitting that the decision of the Tribunal striking out the affected paragraphs of their Petition, is bad in law as the Tribunal in essence was asking them to take the issue of the joint participation of the 1st and 3rd Respondents in the election before the High Court which obviously has no jurisdiction to entertain any matter arising from the conduct of an election.
The 1st Respondent dealt with the paragraphs of the Petition struck out by the Tribunal under his issue 3. It is the submission of the 1st Respondent that upon a calm consideration of the issues raised in the paragraphs struck out by the Tribunal, it was obvious that the issues therein, bordered on pre-election and intra-party matters. That in the circumstances the Tribunal was right in striking out the paragraphs of the Petition it struck out. The 1st Respondent cited the cases of Zeranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184 at 210; and Ucha v. Onwe (2011) 4 NWLR (Pt. 1 237) 386 in aid of their submissions.
Dwelling on the paragraphs of the Petition struck out by the Tribunal, the 2nd Respondent submitted to the effect that the paragraphs of the Petition struck out by the Tribunal were justifiably struck out. The 2nd Respondent cited four unreported decisions of this very Court in which the issues as to “what is a pre-election matter and whether such matters require to be heard on merit where preliminary objection had been raised” were considered, and submitted to the effect that the decision of the Tribunal striking out the paragraphs of the Petition it struck out, is correct having regard to the said decisions. The decisions are:-
1. CA/E/EPT/03/2011 Mrs. Margery Okadigbo v. Prince John Okechukwu Emeka delivered on 19/8/2011;
2. CA/E/EPT/07/2011 Hon. Chike Anyanwu v. Hon. Euharia Azodo & Ors. delivered on 6/9/2011; and
3. CA/E/EPT/09/2011 – Prince Nicholas Ukachukwu v. Andy Emmanuel Uba & Ors. delivered on 9/9/2011; and
4. CA/E/EPT/17/2011 Patrick Amuzie v. Chizor Lambert Obidigwe & Ors. delivered on 9/9/2011.
It is the submission of the 2nd Respondent that by virtue of the provisions of Sections 133(1) and 137(2) of the Electoral Act 2010 as amended, the only person the Appellants are entitled to sue as it relates to candidates in the election is the 1st Respondent.
The 3rd Respondent did not deal with the decision of the Tribunal delivered on 27/7/2011 in his Brief of Argument. He concentrated on the decision of the Tribunal delivered on 4/8/2011 striking out the Petition as an abandoned Petition. The 4th Respondent on its part submitted to the effect that the Tribunal was right in striking out the 4th Respondent as a party in the Petition and that the allegations made against the said 4th Respondent in paragraphs 5, 8, 9A & A1 – A3, 6, 11A – J, 12, 14, 17, 18 and the reliefs sought against the 4th Respondent are unnecessary and irrelevant. It is the further submission of the 4th Respondent that its presence is not necessary for the determination of the Petition and that it presence therein is a mis-joinder.
The grounds of appeal in the instant appeal, without their respective particulars have earlier been reproduced in this judgment. Likewise the paragraphs of the Petition struck out by the Tribunal upon the partial success of the motion on notice brought by the 1st Respondent have been set out. Appellants’ Issue 1 as formulated in their Brief of Argument, (and which has earlier been re-produced in this judgment), questions the correctness of the decision of the Tribunal in striking out all the paragraphs and ground enumerated at page 1058 of the record. The Appellants by their own showing distilled their issue 1 from grounds 1, 2 and 3 of the grounds of appeal. I am of the considered view that the complaints of the Appellants in respect of all the paragraphs of the Petition that were struck out by the Tribunal as set out at page 1058 of the record, having regard to the grounds of appeal, specifically relate to (i) paragraphs 9(a) and 10(A)(1) – (7) of the Petition, via ground 1 as well as particular (iii) of ground 4; (ii) paragraph 20(c) of the Petition, via ground 2; and (iii) the striking out of the 4th Respondent from the Petition, via ground 3.
The Appellants in my considered view would appear not to have raised any complaint against the striking out by the Tribunal of paragraphs 4, 5, 8, 17, 18, 21A(1), and ground 9(c) of the Petition. This is against the backdrop of the settled position of the law that the main function of a ground of appeal is to bring out clearly the complaint an appellant has against the decision appealed against. “Particulars” of a ground of appeal as the name implies on the other hand serves one purpose only; and it is to particularize in specific and clear language the ground(s) of appeal. Hence “Particulars” cannot enlarge the scope of a ground of appeal. See MADUMERE V. NWOSU (2010) All FWLR (Pt. 545) 263. The Appellants having specifically itemized the paragraphs and ground of the Petition they believed that the Tribunal wrongly struck out in their Notice and Grounds of Appeal, in my considered view, cannot properly argue against the correctness of all the paragraphs struck out by the Tribunal as they have done under their issue 1.
Without prejudice to what I have stated concerning Appellants’ issue 1 vis-‘E0-vis their grounds of appeal, it is clear from the ruling of the Tribunal that all the paragraphs of the Petition and ground set out at page 1058 of the record were struck out, as the facts pleaded therein bordered on pre-election matters within the PDP. I have painstakingly perused the Petition and particularly the paragraphs of the Petition and ground struck out by the Tribunal, and I cannot but agree with the conclusion reached by the Tribunal that all the affected paragraphs and ground clearly raise pre-election matters. This Court has in the cases cited in the Brief of Argument of the 2nd Respondent (and which have also been set out in this judgment) consistently held that pre-election matters are not suited for Election Petitions. An Election Petition is to challenge the return or declaration of the winner of the election by INEC. When as in the instant Petition, averments therein prominently or noticeably throw up the issue as to which of two candidates of the same party that actually won the questioned election, or was the proper or qualified candidate of the party in the election, then, the Petition inextricably raises pre-election matters which are not suited for the Petition and therefore have to be removed. Flowing from the above, the Tribunal in my considered view; was very correct in striking out all the paragraphs and ground of the Appellants’ Petition as set out at page 1058 of the record of appeal. I must however hasten to add that in no part of the ruling of 27/7/2007, did the Tribunal strike out any of the Respondents, talk less of the 4th Respondent from the Petition. (Underling supplied by me).
In conclusion Appellants’ issue 1 is resolved against them.
APPELLANTS’ ISSUES 2 AND 3
The above mentioned issues arise from the grounds of appeal in respect of the decision of the Tribunal delivered on 4/8/2011, striking out the Appellants’ Petition as an abandoned Petition. Appellants’ issues 2 and 3 are first being considered together, as it is my considered view that if the two issues are resolved in favour of the Appellants, the need for the further consideration of the issue(s) relating to the correctness or otherwise of the decision of the Tribunal treating the Petition as an abandoned Petition would be unnecessary. In other words, the resolution of Appellants’ issues 2 and 3 in their favour must necessarily result in the setting aside of the decision of the Tribunal striking out the Petition as an abandoned Petition.
The Appellants’ submissions in relation to the issues under consideration in the main are that it was not only wrong of the Tribunal not to have delivered a ruling on their counsel’s application for adjournment before the Tribunal took arguments in respect of the issue raised by it suo motu concerning the application for the issuance of pre-hearing forms, but also that the Tribunal wrongly exercised its discretion in refusing them (i.e. Appellants) an adjournment having regard to the entire circumstances of the case. Many cases were cited by the Appellants in aid of their submissions on the two issues under consideration. Where it is considered necessary or relevant, reference will be made to the cases.
The stance of the 1st Respondent in respect of the issues under consideration as deducible from his Brief of Argument, is that the Tribunal was not only right, in not ruling first on the application of Appellants’ counsel for adjournment before calling on the said Appellants’ counsel to address the it on the issue relating to application for issuance of pre-hearing forms the Tribunal raised suo motu, but also that the Tribunal was in order, in pronouncing first, on the application for adjournment in its ruling in respect of the issue it raised suo motu, and to have gone on to dismiss the Petition having found first refused the Appellants’ application for adjournment. The 1st Respondent stressed the point that an application for adjournment calls for the exercise of the court’s discretion. The 1st Respondent further stated that it is settled law that no two courts can exercise discretion in the same way; and that even an appellate court is not in a position to substitute the manner in which it would have exercised its discretion with the manner adopted by a lower court or tribunal in the exercise of its discretion.
The stance of the 2nd Respondent in relation to the issues under consideration is not different from that of the 1st Respondent, while both the 3rd and 4th Respondents respectively, did not avert to the issues in their Briefs of Argument.
It is clear from the record of appeal, that it was the Tribunal that raised suo motu the issue that there was no application made by the Appellants for the Petition to be set down for pre-hearing. That the Tribunal set the Petition down for pre-hearing session on 12/7/2011 when the Petition came up for mention upon the information given to the Tribunal by Appellants’ counsel that pleadings had closed in the Petition. The Petition was on the said 12/7/2011 adjourned by the Tribunal till 19/7/2011 for pre-hearing and learned counsel for the Appellants was enjoined or directed by the Tribunal to file and serve the necessary forms accordingly. On 19/7/2011 the Tribunal amongst other things entertained the 1st Respondent’s application and delivered its decision thereon, on 27/7/20111. The decision in the ruling delivered on 27/7/2011, is one of the subject matters of the instant appeal. On the said 27/7/2011, the Tribunal also extended the order it made on 12/7/2011 concerning pre-hearing, by 7 days. It was when the Petition came up on 4/8/2011, that the Tribunal raised the issue concerning the application for the issuance of pre-hearing forms suo motu and called on the Appellants’ counsel to address them as to whether pre-hearing could have been properly constituted without an application and whether the Tribunal does not lack the jurisdiction to continue entertaining the matter.
This compelled the Appellants’ counsel to seek for a stand down and the Tribunal stood the matter down till later in the day – 2pm. Having regard to the record, the Tribunal duly granted the application made by Appellants’ counsel for the stand down of the matter for his address. When the Tribunal reconvened at 2.10pm, Appellants’ counsel informed the Tribunal of how a search of the court’s file for the application the Appellants made for issuance of pre-hearing forms, proved futile. However, as Appellants’ counsel was convinced that they made an application for issuance of pre-hearing forms to the secretary of the Tribunal by letter, he applied for an adjournment “to adduce by way of affidavit evidence” to show that the Appellants did what counsel claimed. Learned counsel for the 1st and 2nd Respondents respectively, opposed the application for adjournment and in opposing the application for adjournment went ahead to address the Tribunal on the consequence(s) of failure to apply for issuance of pre-hearing forms. At page 1063 of the record, learned counsel for the Appellants is depicted as having also addressed the Tribunal on the issue raised suo motu by it. It is however clear from the ruling of the Tribunal, that Appellants’ counsel addressed the Tribunal on the issue it had raised suo motu, upon the advice of the Tribunal, the Tribunal having decided to reserve its ruling on the application for adjournment. (See page 1066) of the record.
The fundamental nature of an application for issuance of pre-hearing forms, to the Tribunal’s continued adjudication over the Petition was certainly not lost on the Tribunal. This much is clear from the issue raised suo motu by the Tribunal and in respect of which it specifically called Appellants’ counsel to address it on. The Tribunal having regard to the record of appeal, had before it a situation where the Appellants’ counsel disclosed that he could not find in the court’s file the application for issuance of pre-hearing forms he was convinced was delivered to the secretary of the Tribunal at the instance of the Appellants, and consequently applied for an adjournment to enable him place affidavit evidence before the Tribunal to establish the fact of the making of the requisite application for the issuance of pre-hearing forms by the Appellants. In my considered view, the Tribunal ought to have specifically ruled one way or the other concerning the application for adjournment, before proceeding further with the issue it had raised suo motu, by advising Appellants’ counsel to address it (i.e. the Tribunal) on the very issue in respect of which learned counsel had initially sought for a stand down. Indeed it is also my considered view, that the Tribunal must be taken to have tacitly or for unstated reason(s) refused Appellants’ counsel application for adjournment, immediately the Tribunal advised Appellants’ counsel to address it on the issue it had raised suo motu and in respect of which learned counsel had sought for an adjournment which was glaringly for the purpose of enabling him adequately address the issue raised suo motu by the Tribunal.
There is no dearth of authorities concerning “adjournment” in the law reports. It is clear from the authorities that though the question of adjournment is within the discretion of a court, the court in the exercise of the discretion is however bound to consider all the circumstances of the case in ensuring that the discretion in this regard, is judicially and judiciously exercised. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt.1) 143; and NWADIOGBU V. ANAMBRA LIMO RIVER BASIN DEVELOPMENT AUTHORITY (2011) All FWLR (Pt. 562) 1612. It is also clear from the authorities that it is for a party seeking for an adjournment to furnish the court with cogent, credible and compelling reason(s) which upon consideration by the court would warrant the exercise of its discretion in his favour. This is why a court, though not willy-nilly bound to grant an adjournment, must still exercise extreme caution in dismissing a suit in limine. See ADENIYI V. AKINYEDE (2010) All FWLR (Pt. 503) 1257. Now, the Tribunal in its ruling would appear to have averted its mind to the application for adjournment and stated to the effect that granting the same would serve no useful purpose. This was after the Tribunal had taken addresses in respect of the issue it raised suo motu. Surely, the sequence of events in this regard, can be likened to one of “putting the cart before the horse”. To compound the situation, the Tribunal having stated that it was bound by its record like any other court, and is also informed and guided by processes contained therein, and acting on its record proceeded to hold that there was no application for issuance of pre-hearing forms either by letter or any other mode filed by the Appellants.
The Tribunal would appear to have lost sight of the fact that the very reason the Appellants had for seeking an adjournment in the first place, was to enable their counsel adequately address the Tribunal on the issue it had raised suo motu, by placing some other form of evidence before the Tribunal to show that the application they made for the issuance of pre-hearing forms ought to have been in the Tribunal’s file”. (Quotes provided by me). The Tribunal would appear to have engaged in a discourse of what would have been sufficient to show the existence of the application for issuance of pre-hearing forms the Appellants claimed to have made, and that an affidavit contradicting the record of the Tribunal was out of it. Yet, the Tribunal never allowed the Appellants to put anything forward by way of affidavit evidence to justify this stance.
The position of the law is that the decision of a court whether or not to grant an adjournment being an exercise of discretion by the court in question, an appellate court will not ordinarily interfere with its exercise. An appellate court will however interfere with the exercise of discretion by a lower court, where the court or tribunal acted out of misconception of law or misapprehension of facts, in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant, or where it exercised or failed to exercise the discretion on wrong or inadequate materials, and in all other cases where it is in the interest of justice to interfere. See UNIVERSITY OF LAGOS V. AIGORO (supra). I am of the considered view that given the sequence of events in the Petition as already narrated or highlighted in this judgment, it would appear that the Appellants right to fair hearing have been infringed upon, by the Tribunal, not only by failing to pronounce on their application for adjournment before advising their counsel to address it on the issue it has raised suo motu, but also by not granting them the adjournment sought to place before the Tribunal whatever affidavit evidence they wanted to put forward, to show that they had applied by way of letter for the issuance of pre-hearing forms. Again, this is particularly so, against the backdrop of the fundamental nature and the consequence the non-filing of an application for the issuance of pre-hearing forms, portends for the Appellants’ Petition.
It is in my considered view most clear that if the Tribunal had averted its mind to the consequence of the non-filing of an application for issuance of pre-hearing notice vis-a-vis the fact that the issue concerning the non-filing of an application for issuance the said forms by the Appellants was raised by it suo motu, at the proceedings of 4/8/2011, the Tribunal would have seen that the principle of fair hearing was better observed or complied with, by considering the application for adjournment made by the Appellants for the purpose of showing that they did in fact make an application for issuance of pre-hearing forms in the instant Petition and granting the same before entertaining addresses on the issue it had raised suo motu. If the Tribunal had done this, the Appellants would not only have been afforded the opportunity of presenting whatever material they relied upon to adequately address the Tribunal on the issue it had raised suo motu, but also the Tribunal would not have created the impression that it was hell-bent on disposing of the Petition on the very day i.e. 4/8/2011, it raised suo motu the issue in respect of which it advised Appellants’ counsel to address it. The issue raised by the Tribunal suo motu as it can be seen not only affected the Appellants but also portended the consequence for their Petition once it was resolved against them. This has been clearly confirmed by the striking out of the Petition as an abandoned Petition on the ground that the Appellants did not apply for the issuance of pre-hearing forms. It is a truism that “justice delayed is justice denied”; in the same vein, “hurried justice is justice buried”. Neither is good for the dispensation of justice.
In conclusion Appellants’ issues 2 and 3 are resolved in their favour. The resolution of these issues in favour of the Appellants necessarily implies that all the Tribunal did after it failed to immediately consider and pronounce on the application for adjournment made by learned counsel for the Appellants, to enable the Appellants place affidavit evidence before the Tribunal to show that they made an application for issuance of pre-hearing forms by way of letter to the secretary of the Tribunal, go to naught and stand set aside. In the circumstances there is no need for the consideration of the other issues which raise the correctness or otherwise of the conclusion of the Tribunal that the Petition was an abandoned Petition.
I have not seen the need to dwell on the Replies filed by the Appellants to the respective Briefs of the 1st and 2nd Respondents in the consideration of Appellants issues 2 and 3 which have disposed of this appeal. These are the Briefs which the 1st and 2nd Respondents respectively, objected to by their motions and which motions they duly argued in their written addresses. Suffice it to say that the motions are struck out as the replies to which they relate have not been found relevant for the purpose of resolving the issues upon which the appeal has been decided.
The appeal is meritorious and succeeds in part. The ruling of the Tribunal striking out the paragraphs of the Petition as set out at page 1058 of the record is affirmed. Flowing from the success of Appellants’ issues 2 and 3 it is hereby ordered as follows:-
1. The Petition is hereby sent back to the Tribunal for continued adjudication.
2. The Appellants are hereby granted the adjournment to file affidavit evidence to show that they made application for the issuance of pre-hearing forms by letter to the secretary of the Tribunal. They are to do this, within 2 days of the re-listing the Petition before the Tribunal.
3. The Tribunal is to thereafter entertain the issue it had raised suo motu in the light of whatever affidavit evidence the Appellants place before it and come to its decision on the issue.
I make no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
ADAMU JAURO, J.C.A.: I agree.
Appearances
O.A. Obianwu, SAN;
H.C. OnwuegbukeFor Appellant
AND
Arthur Obi-Okafor, SAN;
C.I. Okafor;
J.O. Nwankiti (Miss) for the 1st Respondent
C.E. Ezenduka (holding the brief of O.J. Nnadi, SAN;) for the 2nd Respondent.
E.N. Onyiborfor the 3rd Respondent
Clems Ezika for the 4th RespondentFor Respondent
