APC v. OKEWULONU & ORS (2021)

APC v. OKEWULONU & ORS

(2021)LCN/15188(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, April 21, 2021

CA/OW/EPT/SEN/3/2021

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)

And

EMMANUEL E. OKEWULONU 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. IFEANYI GODWIN ARARUME 4. CHUKWUMA FRANCIS IBEZIM 5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

EFFECT OF AN UNCHALLENGED ADDRESS OF COUNSEL

… the record of address by respective counsel as captured by the record has not been challenged by the Appellant, by way of an affidavit, having not done so, he is bound by the contents and cannot argue contrary. See REGISTERD TRUSTEES OF INTERNATIONALS SECONDARY SCHOOL ORLU & ANOR V BICOZ OIL COMPANY & ANOR (2014) LPELR-22836. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

WHETHER AN APPELLATE COURT AS WELL AS THE PARTIES ARE BOUND BY THE RECORD OF APPEAL

“It must be emphasized that the law is firmly settled that an Appellate Court as well as the parties are bound by the record of appeal before the Court of Appeal and cannot and will not be permitted to say anything outside the record of appeal. See OTUNBA OGUNTAYO v. PRINCE FATAI ADELAJA & ORS (2009) 15 NWLR (Pt. 1163) 150 at 190 H to 191A per OGBUAGU, J.S.C. who said; “It must be stressed that this is also settled that the record of proceedings bind the parties, counsel and the Court until the contrary is proved. See the case of SOMMER v. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Pt. 219) 548, (1992) SCNJ 73. Therefore, an Appellate Court has no jurisdiction to read into the record, what is not there and equally, it has no jurisdiction to read out of the record what is there. An Appellate Court must read the record in the exact content and interpret it.” See also: 1. HON. ZAKAWANU I. GARUBA & ORS v. HON. EHI BRIGHT OMOKHODION & ORS (2011) 75 CM 85 at 108 C – E per CHUKWUMA – ENEH, J.S.C. 2. SOLOMON OHAKOSIN v. COP IMO STATE & ORS (2009) 15 NWLR (Pt. 1164) 229 per KEKERE-EKUN, J.C.A. now J.S.C. 3. U. NWORA & ORS v. NWABUEZE & ORS (2011) 17 NWLR (Pt. 1277) 669 at 720 C.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

WHETHER PARTICULARS OF A GROUND OF APPEAL MUST BE DEPENDENT AND RELATED TO THE GROUND OF APPEAL

I agree with the 3rd Cross Respondent that the particulars herein are totally independent and are unrelated to the ground neither does it arise from the judgment. See OLUFEAGBA & ORS V ABDUR-RAHEEM 2009 LPELR-2613 the Court held thus; “The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out. See Honika Sawmill Nig. Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) 22; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.” Per FABIYI, J.S.C. (Pp. 13-14, paras. F-B) See STRILING ENGINERRING NIG LTD V YAHAYA 2001 LPELR- 7046(CA). For a ground to be valid or proper it must relate to the particulars supplied where it is unrelated or does not flow from the ground then it is defective and liable to be struck out. It is hereby struck out. In ODUTOLA V TOGUN- BICKERSETH & ORS (2018) LEPER-44842(CA), on the relevance of the relation of particulars, this Court held thus; “It is important to note that ground of appeal and their particulars are intimately related and should not be divorced from one another, even though they are to be differentiated. As a matter of fact, it has been stated in a plethora of decisions that the particulars of a ground of appeal is to bring to the fore the nature of the complaint of an Appellant against the decision of the lower Court. See OGBECHIE v. ONOCHIE (1986) 2 NWLR (PT. 23) 484; DIAMOND BANK LTD v. PARTNERSHIP INVESTMENT COMPANY LTD & ANOR (2009) 18 NWLR (pt. 1172) 62 SC; DAKOLO & ORS v. REWANE-DAKOLO & ORS (2011) LPELR – 915 (SC); OLEKSANDR & ORS v. LONESTAR DRILLING COMPANY LIMITED & ANOR (2015) LPELR – 24614 (SC).” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 14-15, paras. E-B).PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

DUTY OF THE COURT WHERE IT FINDS THAT A SUIT FILED BY A PARTY AMOUNTS TO AN ABUSE OF THE PROCESS OF THE COURT

…in the case of;OKONKWO V FRN 2011 LPER 4723(CA) “Where a Court finds that a suit filed by a party amounts to an abuse of the process of the Court, it has the duty to dismiss it or to put a final stop at least as far as that Court is concerned, to the abuse of its process. This is the law enunciated by the Supreme Court in the case of ARUBO v. AIYELERU (1993) 3 NWLR (280) 126 where it held that once a Court is satisfied that any proceeding before it is an abuse of Court process, it has the power, indeed the duty, to dismiss it. That is to say that once a Court is satisfied that the proceedings before it amounts to abuse of process, it has the right in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Such power is often exercisable by a dismissal of the action which constituted the abuse. See also ONYEABUCHI v. INEC (supra) at page 441-2.” Per GARBA, J.C.A. (Pp. 40-41, paras. F-B). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the NATIONAL AND STATE ASSEMBLIES ELECTION PETITION TRIBUNAL sitting at Owerri contained in its decision of 24th February, 2021 whereby the Tribunal set aside its ruling of 22nd February, 2021 setting aside a motion filed on 20th day February, 2021 praying the Tribunal for an order striking out 3rd Respondent’s name from the Petition based on the judgment of the Supreme Court in Suit SC/971/2020 BETWEEN ARARUME V IBEZIM DELIVERED ON 5TH FEBRUARY 2021.

This appeal arose when the Tribunal took a decision on the 22/2/2021 to hear a motion but changed its mind to take the Appellant’s Motion alongside with the Petition by virtue of Section 285(8) of the 1999 CONSTITUTION (as amended).

The Appellant dissatisfied with the Tribunal’s decision filed a Notice of Appeal on 4th March, 2021, see page 387-386 of record.

Appellant’s brief is filed on 11/3/21, Appellant’s reply brief to 1st and 2nd Respondent’s brief on 18/3/21, and Reply to 3rd Respondent’s brief of argument filed on 19/3/21 respectively settled by CHIEF OLUSOLA OKE

SAN, CHIEF OLAIDE AJANNA SAN, REMI PETER OLATUBORA, SAN, MARTINS AGUDA ESQ., DR C. C. NWADIGO ESQ., E. O. OBICHINA ESQ., KHALI O. AJANA ESQ., J. M. MATTHEW ESQ., O. C. OKE, ESQ. OF OKE, AJANA & CO wherein they formulated two issues;
1. Whether having on 22nd day of February, 2021 decided that it would hear and determine Appellant’s motion dated 19th February, 2021 by adjourning same to 24th February, 2021 for hearing, the trial Tribunal was not in error to have declined the hearing of the said motion when it came up for hearing on the said date thereby refusing to give effect to the judgment of the Supreme Court properly brought to its knowledge by the Appellant.
2. Whether the refusal of the trial Court to hear and determine Appellant’s motion which was meant to enforce the judgment of the Supreme Court in SC/971/2020 – ARARUME V UBAH & ORS was not unconstitutional and a breach of the Appellants right against double trial for the same cause.

The 1st and 2nd Respondents’ brief was filed on 24th March, 2021 settled by D. C. DENWIGWE SAN, CHINO EDMUND OBIAGWU SAN, J. O. ASOLUKA SAN, O. S. AKINOLA ESQ., O. O. OKONKWO ESQ., C. C. NWALOR

ESQ., PAMELA OKOROIGWE ESQ., FELIX O. EMORDI ESQ., PRECIOUS NWADIKE ESQ., EMMANUEL OHONYON ESQ., CHISOM NJOKU ESQ., where he distilled a sole issue for determination thus
WHETHER THIS APPEAL OUGHT TO BE DISMISSED?

The 3rd Respondent’s brief was filed on 17th March, 2021 same was settled by K. C. NWUFO SAN, GORDY UCHE SAN, WALE OLATUNJI ESQ., EMMA NWOSU ESQ., H. U. UDENSU ESQ., T. N. NWOSU ESQ. E. R. IREMEKA ESQ., U. N. ISSAC ESQ., OF NWUFO SAN & ASSOCIATES.

The 4th Respondent distilled two issues for determination;
A. Whether the Tribunal decided on the 22nd day of February, 2021 to hear and determine the Appellant’s motion dated 19th February, 2021 on the next adjourned date of 24th February, 2021 and then refused to hear and determine the said motion on 24th day February, 2021?
B. Whether the non- hearing of the said Appellant’s motion, alleged meant to enforce the judgment in SC/971/2020 on the said 24th February, 2021 was unconstitutional and a breach of the Appellant’s right against double trial for the same cause?

APPELLANT’S ARGUMENT
The Appellant argued that by Section 137(2) of the Electoral Act 2010 (as amended),

“A person whose election is complained of is, in this Act, referred to as the Respondent”

And that by this, the only person whose election is complained of is competent to be made a Respondent to the petition. The joinder of the 3rd Respondent in this petition by the 1st & 2nd Respondent has resulted in several litigations as to which of the 3rd and 4th Respondent was the candidate of the Appellant or whether Appellant had a candidate at all in the election of 5th December, 2020.

He further submitted that the 3rd Respondent is not competent to be joined to the petition by virtue of the Supreme Court decision, this has affected the joinder of the 3rd Respondent in this petition. Who was joined and substituted the 3rd Respondent’s name with the 2nd Respondent, by the 4th Respondent by the decision of the Federal High Court’s order made on 6th November, 2020, which was quashed and set aside by the Court of Appeal and the Supreme Court respectively.

He stated that the motion in paragraph 3 sought for this to be effected that the name of the 2nd Respondent be struck out from the petition. That the attention of the trial Court was

drawn to the judgment of the Supreme Court and the Court had agreed to take the application first but without any application the same Court set aside the decision and that the Tribunal fell into grave errors to have reopened the argument of order of procedure to take on the motion, and submitted that haven acted contrary, it amounted to a nullity being a decision taken without jurisdiction.

Appellant argued that the Tribunal had become funtus officio on the issue in reopening arguments in the absence of the appellant counsel A. O. Ajana SAN. He cited a ANATOGU V. IWEKA II (1995) 8 NWLR (PT 415) 549 AT 585. That the Court had no power to alter the very the order after it has been uttered or drawn up except to correct errors or under the slip rules and its exception.

That none of the exceptions existed for the Court to have acted as it did. That the trial Court had a constitutional duty to enforce the Supreme Court judgment. That the Supreme Court’s decision disqualified the 3rd Respondent as a Respondent in the petition questioning the election and return of a candidate at the Imo North Senatorial District Bye Election he cited

NIGERIA AGIP OIL COMPANY LTD V NKWEKE (2016) 7 NWLR (PT 1512) 288 at 617.

Appellant opined that failure of the trial Court to take a decision on the motion 3rd respondent would allow them; cross examine appellant’s witnesses, ask and lead questions from 1st and 2nd respondent’s witnesses to destroy the appellant’s case, exposing appellant to attack from 1st and 2nd respondent and 3rd respondent, lead evidence in chief against appellant’s defence, relitigate the issue of who, between him and the 4th respondent who the candidate is. Disregard the Supremes’ Courts judgment, legalise an abuse of Court process and a pollution of the streams of justice and this damage amongst others could have been avoided. Had the tribunal not reversed itself?

Appellant urged the Court to invoke Section 15 of the Court of Appeal Act to exercise its powers to enforce the Supreme Court’s decision by assuming jurisdiction over the Appellant’s motion and strike out the name of the 3rd Respondent as a respondent in the petition.

1ST AND 2ND RESPONDENT ARGUMENT
The 1st & 2nd Respondent in reply argued that the Appellant urged the trial Court to hear and determine the application alongside

the final written address and cannot turn volt face to complain and appeal against the same interlocutory decision which it expressly urged the Tribunal to reach. He cited AKUNEZIRI VS OKENWA 2000 15 NWLR (PT 691) 526 AT 551 H ANS C&B DEV CO LTD VS MIN E&UD (2019) 5 NWLR (PT 1666) 484 AT 514 H and the proceedings at pages 381-386 of the Records.

1st and 2nd Respondent argues strenuously that the Appellant is estopped from suggesting that he has suffered any prejudice. He cited MOBIL PRODUCING NIG. LTD. V MONOKPO 2003 18 NWLR (PT 852) 346, PDP V SYLVA 2017 5 NWLR (PT 1567) 74 at 92 and INEC V YUSUF (supra).

In submitting that the object of the motion is to have the name of 3rd Respondent to a petition struck off at an interlocutory stage and the natural consequence will be an amendments of processes which is contrary to the mandatory provision of Paragraph 14(2)(a)(i) and (b)(2) and 4(1) of 1st Schedule to the Electoral Act and OKE V MIMIKO 2013 LPELR – 20645(SC).
Finally, he urged the Court to dismiss the appeal.

3RD RESPONDENT’S ARGUMENT.
Arguing the two issues together, 3rd Respondent submitted that the Tribunal never

decided to hear the motion on the 24th of February, 2021 as alleged, that the motion was not meant to enforce the judgment of the Supreme Court in Appeal No SC/971/2020 as alleged, that the judgment was not executory in nature he referred to OKOYA V SANTILLI 1990 2 NWLR (PT 131) 172.

He argued that the deferment of the said motion to be taken together with the substantive petition did not breach Appellant’s right against double trial for the same cause and as such is not unconstitutional.

Counsel submitted that the decision to defer the hearing of the motion was that of Counsel in the petition including the Appellant’s counsel. He referred to pages 385 & 386 of the record that there is no appeal on this ruling and failure to appeal the finding amounts to conceding and its binding on the appellant. He cited LADOJA V AJIMOBI (2016) 10 NWLR PT 1519, DURBAR HOTEL PLC V ITYOUGH (2017) 7 NWLR PT 1564 PG 256, AGBAJE V INEC 2016 4 NWLR PART 1564 PG 256 SALEH V ABAH (2017) 12 NWLR (PT 1578) PG 100 @ PG 100 @ 134.

3rd Respondent opined that the motion challenges the inclusion of the 3rd Respondent in the petition and is an objection to the petition

and as such liable to be taken along with the substantive petition in compliance with the provision of Paragraph 12(5) of First Schedule to the Electoral Act 2010 (as amended) he cited BELGORE VS AHMED (2013) 8 NWLR PART 1355 PAGE 60 AT 92-93, SYLVA V INEC (2018) 18 NWLR PT 1651 PAGE 310 AT 349 PAR E-G.

In addition, he submitted that the decision of the Supreme Court in SC/CV/97/2020 & SC/CV/972/2020 relied upon by Appellant in contending that the 3rd Respondent was disqualified therein is grossly misconceived and misleading. That it did not specifically hold that 3rd Respondent was not qualified or not a candidate but merely decided the effect of no joinder of a necessary party in a suit. But instead, it is the 4th Respondent that was specifically and unequivocally declared to be disqualified from being the Appellant’s candidate for false documentation. He referred to Article 3(f) of the Appellant’s Electoral Guidelines which forbids 4th Respondent and refuted that Section 137(2) of Electoral Act provides that the 2nd Respondent is not statutory respondent, he referred to OBASANJO V. YUSUF 2004 9 NWLR PT 877 PG 144; ELUEMUNOH V. OBIDIGWE 2012 OBIDIGBO V. OBIANO & 7 Ors

2014 LPER- 23294 (CA). He added that it will be prejudicial to 3rd Respondent if his name is struck out at interlocutory stage, and be a breach of fundamental right to fair hearing he cited ALHAJA A. W. AKIBU & ORS V. ALHAJA MUNIRAT ODUNTAN & ORS (1991) 2 SCNJ PG 30, FIRST AFRICAN TRUST BANK LTD. VS. B. O. EZEGBU & ANOR (1993) 6 SCNJ PG 122 and OMONIYI V ALABI (2015) 6 NWLR (PT 1456) PG 572 at 592.

3rd Respondent strongly referred to several decisions of the Federal High Court and the Court of Appeal confirming the decision disqualifying the candidature of the 4th Respondent and submitted that the continued presence of the 4th Respondent as 3rd Respondent at the Tribunal serves no useful purpose based on FHC/ABJ/CS/1229/2020, APPEAL CA/A/CV/1085/2020 & CA/A/CV/1127/2020, Section 122(2)(m) of Evidence Act and EZEANOCHIE VS IGWE (2020) 7 NWLR PT 1724 PG 430 AT 457.

3rd Respondent submitted that the 4th Respondent had filed a suit at the Federal Capital Territory FHC/HC/CV/3388/2020 CHUKWUMA FRANCIS IBEZIM VS INEC & ANOR praying that the certificate of return of the election of 15th March, 2021 be issued to him which was

struck out with cost of N50,000. Therefore, he stated that 4th Respondent did not participate in the primary election and so all votes purportedly cast for him are invalid. He referred to EJIOGU V IRONA 2009 4 NWLR (PT 1132) PG 513 at 560.

3rd Respondent stated that the Appellant’s screening committee disqualified the 4th respondent that he is not qualified to participate in the primary election as enshrined in Article 3(f) of the Electoral Guidelines as at the date of election 5th December, 2020 when Imo North Senatorial District Bye Election took place, it was the name of the 3rd Respondent/Cross Appellant that was in INEC’S finalist of candidates found on pages 106 -107 of the supplementary record of appeal listed as No. 5 as candidate of APPELLANT (APC) for Imo North Senatorial District Bye Election.

Finally, he urged the Court to dismiss the appeal and resolve the issues for determination in favour of the 3rd Respondent in the circumstance.

APPELLANT’S REPLY TO 1ST & 2ND RESPONDENT’S BRIEF
The Appellant in reply to submissions of 1st and 2nd Respondent addressed under 6 points of law;

That the 1st & 2nd Respondent’s sole

issue does not arise from the appellant’s ground of appeal not having sought any relief hence its incompetence. That there is no law compelling the Court to hear the matter on such adjourned date even if the justice of the case otherwise dictates and the adjournment is a discretionary power of Court.

That the Appellant did not leave the issue of the motion being taken together or deferred to end of the hearing of the petition and there is nothing on the record to this effect. The Appellant again stated that the reference to the decision to take the motion along with the petition in the absence of Chief A. O. AJANA SAN, amounts to an accusation by 1st & 2nd Respondents of engaging in an act of disrespect and indiscretion.

The Appellant submitted that curiously, he suspected collusion between the 1st and 2nd Respondents and the 3rd Respondent on one hand and the 3rd Respondent against the Appellant on the other hand, that the 1st & 2nd Respondents have no moral basis to take an opposing position against the Appellant.

REPLY ARGUMENTS TO 3RD RESPONDENT.
In specific reply to the 3rd Respondent that the Tribunal never decided to hear

and determine the application before hearing in the Petition, he referred to the proceedings which he reproduced which he said speaks for its self.

Secondly, that contrary to the submission of 3rd Respondent, the Supreme Court’s judgment was executory in nature and submitted that the Supreme Court estopped the 4th Respondent from any claim of being a candidate of the Appellant.

On the effect of Paragraph 12(5) of the 1st Schedule to the Electoral Act, on the motion, he posit that it is misconceived that the motion is not an objection to the hearing and the Tribunal having taken addresses from counsel on the mode of hearing the motion, adjourned same for hearing therefore the Tribunal was wrong to have reversed itself. He referred to BELGORE V AHMED 2013 8 NWLR (PT 1355) 60 at 92.

Appellant re-emphasised its earlier stand in his brief and that the Tribunal was not caught by the provision of Section 285(5) of the Constitution. That the paragraphs 3.15, 3.16, 3.17, 3.18, 3.20 – 3.31 has gone beyond the scope of the narrow issue thrown up in this appeal. That the cases, cited by the 3rd Respondent are irrelevant. He urged the Court to dismiss the appeal.

The issues for determination centers around the procedure and directive of the Court’s application of the apex Court’s judgments by the Tribunal. They are basically the same save for the manner of framing. I shall adopt the appellant’s issues but argue them together.

RESOLUTION: ISSUES 1 & 2
I have copiously read the briefs filed on behalf of parties and noted their respective submissions captured above, I have also studied the Motion and proceedings emanating thereon together with the respective rulings and consequential judgments of the apex Court on the various issues affecting the claims of the parties herein.

The main questions herein are;
How did the ruling emanate? What exactly transpired at the Tribunal on the 22nd of February 2012?

The 1st Respondent filed a motion asking that;
1. An order granting leave to the 1st respondent to move and argue this application during or outside the pre-hearing session.
2. The name of the 2nd Respondent —ARARUME be struck out for being improperly joined on grounds that:
a…b…c
d. The said Court judgment has been set aside or quashed by both Court of appeal and

the Supreme Courts, that by virtue of Section 137(2) & (3) of the Electoral Act 2010 (as amended), the 2nd respondent has been improperly joined or mis-joined in this petition as he is not a stator Respondent who ought to be joined.”
e. The 2nd Respondent’s name ought to be struck out for being improperly joined.”…

At pages 381 — … of the record is the proceedings of that day though reproduced by some of the respondents in their briefs, Parties were represented by their respective counsel.

The said Motion is at page 109 – 113 of record it was filed by the 1st Respondent – ALL PROGRESSIVES CONGRESS (APC).

Chief Ajana SAN, (Counsel for 1st Respondent) asked that the application be heard if counter affidavits are served on him and later in the same breath at page 382, he suggested that addresses be adopted and ruling on application the application be heard and ruling delivered before the adoption of final address in the petition.

2nd Respondent’s Counsel – Nwosu Esq. was of the view that the motions be carried along with other motions for determination by Tribunal at final judgment.

While Mathew Esq. counsel for

3rd Respondent; agreed with submissions of petitioners and the 1st Respondent that both applications be taken before full trial so that the wheat can be separated from the chaff.

Petitioner’s counsel, Denwigwe SAN was of the view that they canvassed in the counter affidavit file that the application should not be held now.

At page 384, the Tribunal chairman adjourned the application to 24/02/2021 for hearing, while other applications and interlocutory applications can also be taken and adopted alongside the final written address of the main petition…

At page 385, the parties were represented; except 4th and 5th Respondents the Tribunal delivered a ruling on the arguments of the previous sitting held in its ruling hereunder reproduced;
“Having carefully considered the arguments and submissions of learned silks D. C. Denwigwe SAN and K. C. Nwufor SAN that hearing determination of the motion on notice filed by the 1st Respondent and 2nd Respondent respectively praying for the striking out of the names of the 2nd and 3rd respondents respectively from the list of the respondents be deferred to hearing and determination of the substantive

petition and the Learned counsel for the 1st and 3rd respondents leaving the decision on the hearing of the Application now or later to the discretion of the Tribunal.
We agreed on the nature of justice and in line with the provision of Section 285 (8) of the Constitution of the Federal Republic of 1999 (as amended) that the 2 (two) motion on notice be heard and determined alongside the main substantive petition as both Applications touches on the substantive petition as both Applications touches on the substitution of petition. We hereby order that the 2 (two) Applications be heard at the final stage of petition. The pre-hearing Report adjourned to 1/3/2021.”

It is therefore correct that the Tribunal gave no indication that the issue of the procedure was to be adjourned for ruling having the previous proceedings held that it would hear the application on the 24/2/21. It neither notified the counsel of the ruling, in fact, there was no application on the 24th and addresses had closed with the adjournment of the 22nd of February, 2021. The adjournment on the 22nd was for hearing of the application instead strangely the parties met a ruling

on arguments of 22nd. I agree that it was a wrong procedure adopted.

The Tribunal stated that the 1st and 3rd Respondents left the issue at the discretion of the Court, this is not borne out by the record of proceedings of 22/2/21. It was not the 3rd Respondent, he aligned with the 1st respondent that the application be taken before the commencement of trial.

However, the record of address by respective counsel as captured by the record has not been challenged by the Appellant, by way of an affidavit, having not done so, he is bound by the contents and cannot argue contrary. See REGISTERD TRUSTEES OF INTERNATIONALS SECONDARY SCHOOL ORLU & ANOR V BICOZ OIL COMPANY & ANOR (2014) LPELR-22836.
“It must be emphasized that the law is firmly settled that an Appellate Court as well as the parties are bound by the record of appeal before the Court of Appeal and cannot and will not be permitted to say anything outside the record of appeal. See OTUNBA OGUNTAYO v. PRINCE FATAI ADELAJA & ORS (2009) 15 NWLR (Pt. 1163) 150 at 190 H to 191A per OGBUAGU, J.S.C. who said; “It must be stressed that this is also settled that the record of proceedings

bind the parties, counsel and the Court until the contrary is proved. See the case of SOMMER v. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Pt. 219) 548, (1992) SCNJ 73. Therefore, an Appellate Court has no jurisdiction to read into the record, what is not there and equally, it has no jurisdiction to read out of the record what is there. An Appellate Court must read the record in the exact content and interpret it.” See also: 1. HON. ZAKAWANU I. GARUBA & ORS v. HON. EHI BRIGHT OMOKHODION & ORS (2011) 75 CM 85 at 108 C – E per CHUKWUMA – ENEH, J.S.C. 2. SOLOMON OHAKOSIN v. COP IMO STATE & ORS (2009) 15 NWLR (Pt. 1164) 229 per KEKERE-EKUN, J.C.A. now J.S.C. 3. U. NWORA & ORS v. NWABUEZE & ORS (2011) 17 NWLR (Pt. 1277) 669 at 720 C.”

The submission that some parties were absent is not tenable because proceedings was adjourned in their presence for hearing till the 24th. Any counsel who did not attend Court in person or by proxy on the 24th date of adjournment cannot complain this in law is neither here nor there, the proceedings will go on and no breach of fair hearing can be alleged. See OJUKWU V NNORUKA 1999 LPLER-5683(CA).

What then is the effect of the wrong procedure has it caused any miscarriage of justice?

Furthermore, having changed its stance and based its reasoning on the provision of the Constitution and the Electoral Act, the Appellant’s contention at page 15 paragraph 24 of his brief are negative implications of the Tribunal’s reversal of its decision to determine Appellant’s motion including but not limited to giving 3rd Respondent license to; cross examine appellant’s witnesses, ask and lead questions from 1st and 2nd Respondent’s witnesses to destroy the Appellant’s case, exposing Appellant to attack from 1st and 2nd Respondent and 3rd Respondent, lead evidence-in-chief against Appellant’s defence, relitigate the issue of who between him and the 4th Respondent who the candidate is, disregard the Supreme Court’s judgment, legalise an abuse of Court process and a pollution of the streams of justice and this damage amongst others could have been avoided.

These are futuristic issues which can be handled during trial and cannot be a basis guiding the discretion of the Court, when the reason for the motion is based on a Supreme Court’s judgment.

I am therefore

persuaded that these cannot be equated to a miscarriage of justice, apart from these, nothing is on record said to have been grave results of the reversal.

The Appellant is not complaining about the reasons for the change in procedure but the (sudden twist without notice) manner of change, which I believe is correct and he can question this, but in the light of reasons adduced and worse effect of hearing the motion before trial, filing this appeal would not erase the loss of time and angle to be created in the light of provisions of the law, limited time within which to hear the entire petition definitely I dare say that the discretion is entirely that of the Tribunal.
The Appellant has disagreed that the application is not an objection under Section 12(5) of First Schedule to the Electoral Act. Well, if an application to remove the name of a party from a petition and would involve facts and points of law together with exhibits involving superior decision, it would definitely be such that affects the strict timing of the petition as a whole because processes will be involved and in the final analysis, it is the same process that would form part of the

final determination. See BELGORE V AHMED (supra) and SYLVA V INEC (supra).
In addition, a perusal of the address of respective counsel was not seriously persuasive but rather the Appellant did not press the point nor make an issue of the timing of the hearing of the application of importance. His stance smacks of a tacit consent on the part of the Appellant amidst emphatic addresses that the application be heard along with the petition. There was no alleged miscarriage of justice that would occur hence, this impressed on the Tribunal in making a ruling backing up the change. See AG FEDERATION V A.G ABIA 2001 LPELR-24862(SC).
The discretion has to do with the directions as to the manner in which the question or issue by the Court or a Judge in Chambers would be dealt with. What the Appellant is canvassing amounts to wrestling the power of discretion from the Tribunal. See ACCESS BANK V. KPORO 2017 LPELR-436666(CA) and KOLAWOLE V. A.G OYO STATE (2005) LPELR-7516.

On the whole, there has been no constitutional breach of any right, by the Tribunal and I so hold. I resolve issue 1 against the Appellant.

The Appellant has made heavy weather that

the Tribunal refused to give effect to the judgment of the Supreme Court in SC/971/2020 ARARUME V UBAH & ORS, the point to be made is that, this assertion cannot be made until the hearing of the petition is concluded and the issue on the judgment has not been evaluated to see how it applies to the petition and if it does, and it was not applied then the Appellant can complain but not at this stage.

Having read the several Supreme Court judgments generated by respective parties, either from the primaries or election under the petition, and especially the judgment in SC/971/20 ARARUME V UBAH where the Supreme Court set aside the judgment of the Federal High Court in disqualifying the 4th Respondent – Chukwuma Ibezim because he was not made a party, and there is yet another Supreme Court appeal yet to be delivered which also touch on the motion in Appeal No – SC/CV/182/2021 APC V ASOMUGHA V TONY ELEBEKE & 3 ORS. Therefore, would the Tribunal be right to proceed to effect a Supreme Court judgment as submitted when in actual fact it is the non-joinder and misjoinder by the first Court of instance that was nullified. It would be premature at this stage

to rush to hear the motion when more decisions are yet to come. The entire scenario has to be carefully examined by the Tribunal and this can only be done at the full hearing when all exhibits DIFFERENT JUDGMENTS affecting the issues would be demonstrated holistically by parties.

I am afraid as the matters stand, giving the peculiar circumstances it would not be correct to submit that the Tribunal refused to give effect to the Supreme Court’s judgment. It is trite that every judgment thrives on the facts of the case and points of law decided hence the doctrine of stare decisis applies mutandis mustandis –

It is also in this vein that this Court would refuse to invoke Section 15 of the Court of Appeal Act (supra), the conditions for it has not arisen.
I resolve issue 2 against the appellant.

On the whole, having resolved the two issues against the Appellant the appeal fails and lacks merit. It is hereby dismissed.
Costs of N350,000 is awarded against the Appellants.

CROSS APPEAL
This is a Cross Appeal filed by the 2nd Respondent/Cross Appellant pursuant to Notice of Appeal filed on 9th March, 2021 against the decision of

the National Assembly Election Petition Tribunal sitting in Owerri in respect of the IMO NORTH SENATORIAL DISTRCT BYE-ELECTION HELD ON THE 5TH DECEMBER, 2020.

The cross Appellant distilled one sole ground thus the brief was filed on 17/3/21 and settled by K. C. NWUFO SAN, GORDY UCHE SAN, WALE OLATUNJI ESQ., EMMA NWOSU ESQ., H. U. UDENSU ESQ., T. N. NWOSU ESQ. E. R. IREMEKA ESQ., U. N. ISSAC ESQ., OF NWUFO SAN & ASSOCIATES.
“Whether, in the light of the judgment of the Federal High Court, Abuja in Suit no FHC/ABJ/CS/1229/2020, APPEAL NO CA/A/CV/1095/2020 respectively disqualifying the 4th respondent herein from the petition to be taken alone with the substantive Petition rather than strike out his name forthwith?”

The 3rd cross—Respondent’s brief is filed 19/3/21 settled by CHIEF OLUSOLA OKE SAN, CHIEF OLAIDE AJANNA SAN, REMI PETER OLATUBORA SAN, MARTINS AGUDA ESQ., DR C. C. NWADIGO ESQ., E. O. OBICHINA ESQ., KHALI O. AJANA ESQ., J. M. MATTHEW ESQ., O. C. OKE ESQ., OF OKE, AJANA & CO.

The 3rd Cross-Respondent raised a Notice of Preliminary Objection at page 2 of its brief

to strike out the cross appeal which was argued in the brief, as incompetent that the Court lacks jurisdiction. On the ground that;
a) The appellant is not the aggrieved person within the meaning of Section 240 of the Constitution of 1999 as amended.
b) The sole ground of appeal is incompetent for not being an attack on any decision taken against the appellant by the Tribunal.
c) The sole ground of appeal is incompetent having not been supported by the or for being at variance with the particulars in support and
(d) That the cross appeal is abuse of Court process.

4th Cross-Appellant briefs filed 19/3/21 settled by MARTIN AGUDA ESQ., E. O. OBICHINI ESQ., J. M. MATHEW ESQ., TOLUOPE O. OKE, O. C. OKE ESQ. OF OKE, AJANA & CO wherein he raised a preliminary objection with grounds which is on all fours as the 3rd cross appellant, which he argued in his brief at page 2 of his brief.
The preliminary objection shall be addressed later in this judgment.

CROSS-APPELLANT’S ARGUMENT
Cross Appellant submitted that having regard to the judgments in FHC/ABJ/CS/1229/2020, CA/A/CV/1085/2020, CA/A/CV/1127/2020 disqualifying

the 4th Respondent for submitting false documents to 5th Respondents herein the Tribunal was wrong in preferring to take the appellants motion on notice of 23/2/21 seeking to strike out the name of 4th Respondent from the petition.

He referred to pages of 251-288, 289-321 of record and submitted that the Court should take judicial notice of the judgments and cited Section 122(2)(m) of the Evidence Act andEZEANOCHIE VS IGWE (2020) 7 NWLR (PT 1724) PG 430 at 457 Paragraph A.

That the 4th Respondent filed a suit FCT/HC/CV/3388/20 asking the Court to compel INEC to issue certificate of returns of election of 5th December, 2020 but it was dismissed.

He posits that the 4th Respondent was not qualified to participate in the primary election conducted by the 3rd Respondent herein, the screening committee which screens aspirants had disqualified him and 5 others and the report of the committee is at pages 322-325 of the record. This was confirmed by the appeal screening committee of the 3rd Respondent at pages 326-327, that also in line with Section 3(f) of the Electoral Act of the 3rd Respondent the 4th Respondent is not eligible to participate in the

article 3(f) of the electoral guidelines, he cited EJIOGU V IRONA (2009) 4 NWLR (PT 1132) 513 at 560.

The Cross-Appellant further canvassed that at the bye-election, it was the name of the Cross Appellant that was in INEC’s final list as No. 5 at pages 106-107 of supplementary record and based on the above submissions, the appeal of the 3rd Respondent be dismissed and this Cross appeal allowed.

He urged the Court to use powers under Section 15 of the Act and hear and determine the Appellant’s motion.

3RD CROSS RESPONDENT
The sole issue for determination is thus:
Whether or not the trial Tribunal refused to take Cross-Appellant application of 3rd Feb., 2021 seeking to strike out name of the 4th Respondent is a question of fact to be determined through examination of record of proceedings of Tribunal on 24th February, 2021.

Counsel referred to pages 385-386 of record and submits that cross appellant was represented by K. C. NWUFOR SAN when the Court deferred the hearing of motion respectively to hearing and determined of substantive petition. Cross appellant’s prayer (which was earlier refused on 22nd February, 2021) was granted at

the instance of the Cross-Appellant. He posit that there was no refusal by the tribunal to take effect on the application that the Cross-Appellant never made any arguments in support of the ground of appeal isolated from particulars and from all angles he abandoned the ground of appeal.

Counsel submitted in the alternative that this Court hears the motion that, the judgment given in favour of the Cross Appellant against the 4th respondent by the Federal High Court which was set aside by the Court of Appeal and restored by the Supreme Court to the effect that the order to replace the name of 4th Respondent with Cross Appellant as candidate ceased to subsist. The appeal being unsuccessful at the Court of Appeal consequent upon which an appeal was made to the Supreme Court SC/CV/182/2021 APC V. ASOMUGHA V TONY ELEBEKE & 3 ORS pending before the apex Court, this Court cannot strike out the name of the 3rd Respondent, it will be premature and speculative he termed cases cited as irrelevant.

Finally, he urged the Court to dismiss the appeal with appropriate cost.

4TH CROSS RESPONDENT
A perusal of the 4th Cross Respondent’s brief reveals that

it is on all fours with the 3rd Cross Respondent’s brief, both in respect of the preliminary objection and arguments on the merit, therefore it’s safe to say that being on the same page, the 4th Cross Respondent aligns himself with the 3rd Respondent.
He urged this Court to dismiss the appeal.

CROSS APPELLANT’S REPLY TO 3RD & 4TH CROSS RESPONDENT’S BRIEF
In reply to the preliminary objection, the Cross Appellant submits that it’s misconceived to say that he is not an aggrieved person within Section 240 of the Constitution and that it is the same issue of procedure of when to take the motion that is the subject of the appeal and this cross appeal and that the issue be discountenanced, that it is immaterial who urged the tribunal to defer. He relied on the decision of JULIUS BERGER (NIG.) PLC V TRCP LIMITED (2019) 5 NWLR (PT 1665) PG 219 at 251 and submits that the cross appeal is competent and not an abuse of Court process he urged the Court to overrule the preliminary objection.

On the merit of the Cross Appeal, he submits that it is what the Tribunal decided that is relevant and that he is aggrieved with the mode of hearing hence he

appealed and refused the notion that he abandoned the ground of appeal that the ground emanated from the motion. He stated that the appeal before the apex Court APC V ASOMUGHA & ORS have been adjourned sine die due to petition written against the justices by the 3rd Respondent and that same is due to lapse.

He submitted in addition that the Federal High Court Abuja on 18th March, 2021 ordered INEC to issue certificate of return to Cross Appellant as the winner of the Imo North Senatorial District Election held on 5th day of December, 2020 and with this the presence of the 4th Respondent is not valueless, therefore the Court should strike out the name of 4th Cross Respondent from the petition and this Cross Appeal and urged this Court to allow the appeal.

In respect of the 4th Respondent the brief of the 4th is the same as the 3rd so I would simply state that the 4th Respondent aligns with the submissions of 3rd Cross Respondent and urged the Court to allow the Cross Appeal.

PRELIMINARY OBJECTION
3RD & 4TH CROSS RESPONDENTS’ ARGUMENT
The 3rd & 4th Respondent’s counsel reproduced the proceedings of 22/2/21 before the Tribunal

where CHIEF A. O. AJANA applied for his motion of be taken and the Court ruled that the motion be adjourned to 24/2/21 for hearing while other interlocutory motions be taken alongside the final address, see page 385-386.

He referred to Section 241 of the constitutional right of appeal which is by an aggrieved person and that this does not inure the cross appellant. Cited MOBIL V MONOKPO (2003) 18 NWLR (PT 852) 346, PDP V. SYLVA (2017) 5 NWLR (PT 1557) 74 AT 92 PAR E-G, 95 D-E.

3rd & 4th Cross appellant emphasised that, it was the Cross Appellant that urged the Tribunal change its decision of 22/2/21 by deferring the motion till the end of the petition and that it is absurd for the Cross Appellant to turn around to appeal a decision in his favour.

He defined an Appellant as one who is by reason of dissatisfaction with a judgment lodges an appeal. That they have no reason to have appealed since the outcome was in their favour.

That the sole ground having not attacked the decision shown to be against the Cross Appellant is incompetent he cited GWEDE V INEC (2014) 18 NWLR (PT 1438) at 56, FRN V MOHAMMED (2014) 9 NWLR (PT 1414) 551 and OKAFOR V ABUMOFUANI

(2016) 12 NWLR (1525) 134 – 135 and OGUNDIPE V ADENUGA (2006) ALL FWLR PT 330 206.

That there is nowhere the Tribunal was urged by them and it refused to take Cross Appellant’s application, therefore the Cross Appellant has no right of appeal and the sole ground of appeal is incompetent having not been supported by particulars. He relied on OKAFOR V ABUMOFUANI (2016) 12 NWLR (PT 1525) 134 and OGUNDIPE V ADENUGA (2006) ALL FWLR (PT 330) 206.

Finally, he submitted that, the appeal is an abuse of Court process, he cited CBN V AHMED SUPRA, EDJERODE V IKINE 2001 18 NWLR (PT 745) 446, R-BENKAY NIG. LTD. V CADBURY NIG (2012) 9 NWLR (PT 1306) 596, SARAKI V KOTOYE 1992 9 NWLR (PT 264) 156, AWOFESO V OYENUGA 1997 7 NWLR (PT 4600), PLATEAU STATE V A.G FEDERATION (2006) 3 NWLR (PT 967) DINGYADI V INEC NO 2 (2010) 18 NWLR (PT 1224) KODE V YUSSUF (2001) 4 NWLR (PT 793).
Finally, he urged the Court to dismiss the appeal.

CROSS APPELLANT’S REPLY TO 3RD & 4TH CROSS RESPONDENT’S PRELIMINARY OBJECTION
In reply to the preliminary objection, the Cross Appellant submits that it’s misconceived to say that he is not an aggrieved person within Section 240 of the Constitution

and that it is the same issue of procedure of when to take the motion that is the subject of the appeal and this cross appeal and that the issue be discountenanced, that it is immaterial who urged the Tribunal to defer.

He relied on the decision of JULIUS BERGER (NIG.) PLC V TRCP LIMITED (2019) 5 NWLR PT 1665 PG 219 AT 251 and submits that the Cross Appeal is competent and not an abuse of Court process, he urged the Court to overrule the preliminary objection.

The purpose of a preliminary objection is to terminate the appeal in limine. See SANI V KOGI STATE HOUSE OF ASSEMBLY & ORS 2021 LPELR- 53067(SC). Therefore, I shall resolve it, if it succeeds it shall end the appeal and if not the merits of the appeal shall then be determined.

RESOLUTION OF PRELIMINARY OBJECTION
The 3rd & 4th Cross Respondent has contended that the Cross Appellant’s counsel on the 2nd February, 2021 had indicated that the applications to remove names of other respondents be taken along with other motions for determination by the Tribunal at final judgment. I have read the said address of counsel therein on the procedure the Court should adopt in

hearing the motion and agree and also confirm that this is borne out by the record at page 383 the Cross Appellant herein was represented by Emma Nwosu Esq., who reiterated that the applications be taken alongside the petition therefore he cannot complain of the decision of the Tribunal, or be termed an aggrieved person under Section 242 of the Constitution. He has not been deprived of any right but got what he prayed for. See PDP V SYLVA 2017 5 NWLR (PT 1557) 74 at 92, MOBIL PRODUCING NIG. LTD. V. MONOKPO 2003 18 NWLR (PT 852) 346.
The Notice of Appeal is at page 136 of the record compiled by the Cross Appellant together a sole ground of appeal with its particulars of error. Reproduced below;
“The learned trial Judges of the Tribunal erred in law when they refused to take the appellant’s application dated the 23rd of February, 2012 for striking out … and this occasioned a miscarriage to the appellant”.
Therefore, the ground of appeal of the Cross Appellant does not attack any decision. He consented to the procedure reversed, hence, there is no miscarriage of justice to him. See GWEDE V INEC (2014) 18 NWLR (PT 1438) 56.

The particulars are mere narrations of events, and cannot be particulars when the motion has not been argued, only the direction as to the mode of hearing. The particulars do not relate to the ground of appeal which is specifically “the refusal”.

(2018) LEPER-44842(CA), on the relevance of the relation of particulars, this Court held thus;
“It is important to note that ground of appeal and their particulars are intimately related and should not be divorced from one another, even though they are to be differentiated. As a matter of fact, it has been stated in a plethora of decisions that the particulars of a ground of appeal is to bring to the fore the nature of the complaint of an Appellant against the decision of the lower Court. See OGBECHIE v. ONOCHIE (1986) 2 NWLR (PT. 23) 484; DIAMOND BANK LTD v. PARTNERSHIP INVESTMENT COMPANY LTD & ANOR (2009) 18 NWLR (pt. 1172) 62 SC; DAKOLO & ORS v. REWANE-DAKOLO & ORS (2011) LPELR – 915 (SC);
OLEKSANDR & ORS v. LONESTAR DRILLING COMPANY LIMITED & ANOR (2015) LPELR – 24614 (SC).”
Per OBASEKI-ADEJUMO, J.C.A. (Pp. 14-15, paras. E-B).

The sole issue herein which is from the sole ground is incompetent having not aligned with the particulars and it is incompetent, without the particulars, the sole ground and issue cannot stand as it’s predicated on nothing it’s rendered incompetent.

In addition, it is therefore clear that

the ground does not flow from the ratio of the decision. There was no refusal by the Tribunal to take the Cross Appellant motion of 23/2/21 in the decision, it is contrary to the proceedings of 22nd and 24th February, 2021. More so, there is challenge of the record before the Court it presumed to be correct.

The 4th Cross Respondent has contended that the appeal is an abuse of Court process. I have examined the process and arguments above and can’t but agree that this is a clear frivolous appeal without any legs to stand, it appears to have been filed for the sake of toying with the Courts or following the band wagon, where there is no grievance, the Cross Appellant has imagined one.

The Court has held on the question – whether Court can strike out or dismiss the proceedings before it where satisfied that it amounts to abuse of process in the case of;
OKONKWO V FRN 2011 LPER 4723(CA)
“Where a Court finds that a suit filed by a party amounts to an abuse of the process of the Court, it has the duty to dismiss it or to put a final stop at least as far as that Court is concerned, to the abuse of its process. This is the law enunciated by the Supreme

Court in the case of ARUBO v. AIYELERU (1993) 3 NWLR (280) 126 where it held that once a Court is satisfied that any proceeding before it is an abuse of Court process, it has the power, indeed the duty, to dismiss it. That is to say that once a Court is satisfied that the proceedings before it amounts to abuse of process, it has the right in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Such power is often exercisable by a dismissal of the action which constituted the abuse. See also ONYEABUCHI v. INEC (supra) at page 441-2.”
Per GARBA, J.C.A. (Pp. 40-41, paras. F-B). I adopt the judgment as mine.

Therefore, it is my strong belief that the appeal cannot be allowed to progress beyond this point as it has become an academic thesis, it has nothing to stand on, it is speculative and an attempt to taunt the wheels of judiciary, which amounts to an abuse of Court process therefore, the appeal is dismissed.

The preliminary objection of the 3rd and 4th Cross Respondent succeeds and is upheld. Consequentially, the appeal is dismissed.

Cost of N250,000 is awarded against the Cross-Appellant and in favour of the 3rd and 4th Respondent.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the lead judgment of my learned brother, ADEJUMO, J.C.A. just delivered and I agree with him that the appeal has no merit and I also dismiss it. I abide by the order as to costs. In respect of the Cross-Appeal, I also agree that the preliminary objection succeeds and I sustain it. I dismiss the Cross-Appeal. I abide by the order as to costs.
I therefore also strike out the appeal.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABIMBOLA O. OBASEKI-ADEJUMO, J.C.A. and I totally endorse the reasoning and conclusion therein.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

NO APPEARANCE For Appellant(s)

1ST & 2ND RESPONDENT- NO APPEARANCE
3RD RESPONDENT/CROSS- APPELLANT- NO APPEARANCE
4TH RESPONDENT-NO APPEARANCE
5TH RESPONDENT- MR. G. OFORMA AGBO For Respondent(s)

LawCare Nigeria

APC v. OKEWULONU & ORS (2021)

admin

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

admin

Related Story

YOU MAY HAVE MISSED