EGWU OYIBO OKOYE v. INDEPENDENT ELECTORAL COMMISSION (INEC) & ORS.
(2010)LCN/3820(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/E/EPT/61/2008 (R)
RATIO
SELF-HELP: DUTY OF PARTIES NOT TO RELY ON SELF-HELP
No matter the possible delay that may be encountered during the pendency of a suit/matter in court parties should not jump the gun and do anything in their own way which may destroy or tamper with the Res which could ultimately render the outcome of the appeal nugatory. To put it in another way, self-help act should not be applied by any of the parties to the suit or matter as to do so will render a successful decision of the court meaningless and ridiculous too. See Governor of Lagos State v. Chief Ojukwu (1986) 1 NWLR (Pt.68) 621. Chief Okoya & Ors v. Santilli & Ors (1991) 7 NWLR (Pt.206) 753. PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria
A.O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
EGWU OYIBO OKOYE Appellant(s)
AND
1. Independent Electoral Commission (INEC)
2. Resident Electoral Commissioner for Anambra State (Ayalera)
3. Returning Officer, Nnewi South Constituency II, Electoral Officer Nnewi South L.G.A.
4. Ikenna Amechi Esq. Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the leading Ruling): The substantive appeal in this case had earlier on been fixed for definite hearing on 20th of April, 2010. When the court convened to hear the appeal on that day, Mr. Mike Okoye of learned counsel for the 4th Respondent stood up to ask for adjournment to enable him prepare and file a motion on notice to invoke the disciplinary jurisdiction of this court because according to him, the appellant herein was issued with Certificate of Return of election which was the subject matter of the substantive appeal, which this appeal will be determined on. Even though he said he heard that information but he did not inform the court of his source of information, that the said certificate was issued excetra.
Dr. J.O. Ibik SAN of learned senior counsel for the appellant described the oral application by Mr. Okoye as mere gossip and unsubstantiated as the 4th respondent’s counsel did not investigate the true position of things before seeking such adjournment. He vehemently opposed the application for adjournment because to him, it was another delay tactics offered by the 4th Respondent so that the appeal was not heard and determined timeously adding that no reason was given by Mr. Mike Okoye as to why the appeal could not be heard on that day. The learned counsel for the 1st to 3rd Respondents Mr. S.O. Ibrahim did not indicate a definite stand as a reaction to the oral application by Okoye but rather left it to the discretion of this court.
After considering the vital Issue raised by the 4th Respondent’s counsel this court granted the application for adjournment in the interest of justice even though it is on record that the appeal suffered several adjournments at Mr. Okoye’s instance. But considering the peculiar nature of election petition appeals which is sui generies and which ought to be disposed of with minimum of delay and despite the fact that most of the adjournments granted earlier in the case were granted at the instance of this same 4th respondent, this court adjourned the matter for only two days and ordered the 4th Respondent to file his motion on that day and serve same on the appellant and other respondents so that they could file their reactions to his motion before the two days period expired. The court tentatively fixed the proposed on application for hearing 22/4/2010 or in its default of filing such application for the hearing of the substantive appeal on that day. Both parties however deserve my commendation for complying strictly with the court’s directive or advice because even before the 22-4-2010, the 4th respondent filed and served his motion on the appellant and other respondents and the appellant counsel on the other hand filed counter affidavit to the application.
In the motion on notice dated and filed on 20-4-2010, the 4th respondent/applicant is seeking the under mentioned reliefs-
1. An order of this Honourable court setting aside the Certificate of Return dated March 29th, 2010 issued by the 1st Respondent to the Appellant while this appeal is pending.
2. An order that the Appellant cannot be sworn in as Member of the Anambra State House of Assembly based on the Certificate of Return issued by the 1st Respondent while this Appeal was pending.
The motion was brought pursuant to Section 6 of the 1999 Constitution of the Federal Republic under the inherent jurisdiction of this court. It was supported by an eleven paragraph affidavit sworn to by Mrs Patricia Igwebuike, legal practitioner attached to the law firm or Okoye & Okoye & Co of learned counsel for the 4th Respondent, even though there is no ground upon which the application was based as mandatory required by Order 7 Rule of Court or appeal Rules 2007. A Newspaper cutting was annexed to the motion and marked Exhibit A. The applicant yet on 21-4-2010 filed another process which he titled ‘Further and Better Affidavit’ of ten paragraphs, to which he also annexed two exhibits namely. Certificate of Return of House of Assembly Election and a letter titled ‘Re- Constituency Project Fund 2010 marked Exhibits B and C respectively’. I would have thought that the process captioned Further and Better Affidavit can only be filed after a Further Affidavit had earlier been filed. I am not aware that any Further Affidavit’ had earlier on been filed by the applicant before he filed the purported ‘Further and Better Affidavit’ on 21/4/2010. It is also observed by me that no leave had been sought and obtained before the said latter process was filed. In any case, I shall in the interest of Justice consider the application in its merit.
Responding to the application when served on him, the learned senior advocate for the appellant filed a counter affidavit on 21-4-2010 which contained thirteen paragraphs. Annexed to it are three exhibits which include the followings:-
(1) Originating Motion dated and filed in the Federal High Court Awka on 13/4/2010 in Suit No FHC/Awk/CS/105/2010.
(2) Motion Ex parte also dated and filed on 13-4-2010 at the Federal High Court Awka in the same Suit.
(3) Enrolled order on the Ex parte application – Exh 3 while arguing the motion before us on 22/4/2010, Mrs Pat Igwebuike of learned counsel for the applicant submitted that it is an undisputed fact that the 1st respondent had issued a Certificate of Return while the Appellant was issued with Exhibit B and that both documents were issued during the pendency of this appeal/case. She said by doing so, the first respondent took a step to overreach the proceeding of the court. She argued that it is trite law that when parties submit to the jurisdiction of the court they cannot then take the matter in their own hand while the case is pending. She said the 1st respondent and the appellant should not be allowed to treat the court with total disdain, adding that by their action they are pre-empting the decision of this court. She also submitted that it is regrettable that a legal practitioner would issue Exhibit C during the pendency of the case. The effect of issuing Exhibit C would tantamount to the fact that the 1st respondent becomes a Judge in the matter. The learned counsel argued that where a pre-emptive act has been brought to the attention of the court, the court should take immediate step to undo that which has been done regardless of the final outcome of the appeal. See Ojukwu v. Obasanjo (2004) 12 NWLR (Pt.886) 169, Ezeogwu v. FTB Ltd. (1992) 1 NWLR (Pt 220) 699 at 729.
The learned counsel finally urged this court to condemn the action of the 1st respondent and to also reprimand the appellant who incidentally is a very senior member of the Bar.
Replying, the learned senior counsel for the appellant drew attention of the court to a counter affidavit which he filed, He observed, rightly in my view that the applicant did not seek and obtain leave of this court before she filed the further affidavit and submitted that the said further affidavit is incompetent and should thus be discountenanced and discarded along with the exhibits annexed to it. Relying on paragraphs 4 to 11 of his counter affidavit and Exhibits 1, 2 and 3 annexed to his counter affidavit, the learned appellant’s/respondent’s counsel also submitted that since the 4th respondent/applicant went to a court of competent jurisdiction and had also obtained interim order on this matter, it therefore amounts to an abuse of court process for him to turn round to tile this instant application. He said it is strange that the applicant did not disclose these vital facts to this court, hence the applicant herein is acting in bad faith. He concluded his submission by urging this court to dismiss the application for being an abuse of court process and on the ground that it was brought in extreme bad faith.
Mr. S.O. Ibrahim of learned counsel for the 1st respondent simply associated himself and endorsed the submission of the learned senior counsel for the appellant/respondent.
The learned counsel for the applicant has stated the law as it is when she said that once parties submit to the jurisdiction or invoke the jurisdiction of the court they are under a legal duty not to do anything to frustrate or make nuisance of a possible order of the court. No matter the possible delay that may be encountered during the pendency of a suit/matter in court parties should not jump the gun and do anything in their own way which may destroy or tamper with the Res which could ultimately render the outcome of the appeal nugatory. To put it in another way, self-help act should not be applied by any of the parties to the suit or matter as to do so will render a successful decision of the court meaningless and ridiculous too. See Governor of Lagos State v. Chief Ojukwu (1986) 1 NWLR (Pt.68) 621. Chief Okoya & Ors v. Santilli & Ors (1991) 7 NWLR (Pt.206) 753.
In the instant application, the first relief being sought by the applicant is urging us to make an order setting aside the Certificate of Return dated 29/3/2010 allegedly issued by the 1st Respondent to the appellant during the pendency of the substantive appeal before this court. To that effect, it was deposed to or averred on behalf of the applicant by Mrs Pat Igwebuike who incidentally argued the present application before us, that the 1st respondent had issued a Certificate or Return of the House of Assembly election to the appellant certifying that he (the latter) had been elected for Nnewi South II State constituency. She also submitted that the said Certificate was presented by the appellant to the Clerk of the House of Assembly emphasizing that the issuance of the said Certificate was done during the pendency of this appeal. On his part, the learned senior counsel for the appellant filed counter affidavit expressing surprise as to why this application was made by the applicant in the first place. This according to him is because a similar application was filed before Federal High Court, Awka. Anambra State though made exparte seeking prayers similar to those in the instant application and that the exparte application is still pending before the said Federal High Court and was adjourned to 3/5/2010 for definite hearing. It is also clear from the averments in the counter affidavit that interim order was made by the Federal High Court restraining the swearing in of the appellant as a member of the House of Assembly and also restraining the Clerk from acting on the Certificate of Return pending the determination of the substantive motion on notice slated for hearing on 3/5/2010. He said he (the appellant) was even not joined as a party in the Return Certificate.
It is noted by me that all these piece of facts revealed in the counter affidavit of the appellant were not revealed at all in the instant application by the applicant. The applicant did not state this development in the affidavit supporting his motion or even the Further and Better Affidavit which was surreptitiously filed by him without the prior leave of this court. One can therefore say that the instant application is not made in good faith. Mr. Mike Okoye who is an old and experienced counsel who initially on 20/4/2010 orally expressed his desire to file the application and raised the issue of the issuance of Certificate of Return to the appellant by the 1st respondent did not give any impression or clue that he had earlier filed a similar motion at the Federal High Court seeking the same reliefs with those in this instant application and had even obtained an interim order of the Federal High Court. This clearly shows that this instant application is not made in good faith. It is also an abuse of process of the court. The applicant does not deserve the exercise of discretion of this court granting this application in his favour as to do so will undermine, pre-empt or frustrate the decision of the Federal High Court before which similar application was made and is yet to be determined. The application is therefore hereby refused and is dismissed accordingly.
MOHAMMED L. TSAMIYA, J.C.A: I agree.
AYOBODE O. LOKULO SODIPE, J.C.A.: I have had the privilege of reading in advance the Ruling just delivered by my learned brother, Amiru Sanusi, J.C.A and I am in total agreement with his lordship’s reasoning and conclusion.
I adopt the Ruling as mine. Accordingly, I refuse the instant application and also dismiss the same.
Appearances
Pat Igwebuike (Mrs)For Appellant
AND
Dr J.O. Ibik SANFor Respondent
