ENGR. NWABUEZE NNAMDI ONWUNEME& ANOR v. HON. KELECHI ONUZURUIKE & ORS
(2019)LCN/13737(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of August, 2019
CA/OW/EPT/SHA/17/2019
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. ENGR. NWABUEZE NNAMDI ONWUNEME
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. HON. KELECHI ONUZURUIKE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETEHR OR NOT COURT CAN DISMISS THE SAME CASE TWICE OR IN PIECE-MEAL
A Court cannot dismiss the same case twice or in piece-meal, because, having made a formal order of dismissal of the case, it became functus officio, to entertain it again to pronounce on the same case; that position holds, except there is an order of appellate Court, i.e. if the first order was appealed and the appellate Court ordered the Lower Court to take back the case and hear, as done in CA/OW/EPT/SHA/02/2019.
Of course, an order of dismissal of a Suit suggests that the Suit had been heard to finality on the merits before such order is made! See General Electric Company Vs Akande & Ors (2010) LPELR ? 8097 (SC) and Ejiofor Vs Onyekwe & Ors (1972) LPELR ? 1068 SC:
?An Order of dismissal operates as estoppel per rem judicata and, ipso facto, bars the losing party for all times from re-litigating the same subject matter. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is said to have emanated from the Interlocutory decision of the National/State Assembly Election Petition Tribunal (Panel 2) sitting at Umuahia presided over by Hon. Justice A.A. Adegibigbe (as chairman) withHon. Justice Kadi M.Y. Usman andHon. Justice W. Animahun (as members), delivered on 14/06/2019, dismissing, in limine, the Petition of the Appellant against the 3rd Respondent, having earlier, on 27/05/2019, in the course of pre-hearing, dismissed the Petition against the 1st and 2nd Respondents, necessitating Appeal No. CA/OW/EPT/SHA/02/2019 ? ENGR NWABUEZE ONWUNEME & ANOR VS KELECHI ONUZURUIKE & ORS, said to be presently pending before this Court and yet to be determined.
I should, however, state at this stage, that the Interlocutory Appeal No. CA/OW/EPT/SHA/02/2019, referred above, is no longer pending in this Court, as this Court has since delivered judgment on the same, on 19/7/19, wherein this Court, in a majority decision, allowed the appeal and set aside the decision of the Tribunal and ordered that the Petition No.EPT/AB/HA/01/2019 be remitted to
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the Tribunal for hearing on the merit by another panel, differently constituted. M.O. Bolaji-Yusuf JCA, however, failed to agree with the majority decision as she dissented, holding that the records of the Appeal presented by the Appellants was incompetent and the appeal, deemed abandoned. Appellant had cited the above judgment in the course of arguing the preliminary objection.
At the lower Tribunal, Appellants, as Petitioners, in Petition No: EPT/AB/HA/01/2019, filed on 29/03/2019, vide originating process, were dissatisfied with the Ruling of the Tribunal, made on 14/6/19, wherein the Tribunal held:
?In view of the refusal of the Petitioners and their Petition, (sic) commence the presentation of their Petition, and on the application of Counsel for the respondent for dismissal of same, the Petition of the Petitioners filed on 29/3/2019 is hereby dismissed for want of diligent prosecution.? See page 9 of the Records of Appeal (compiled by the Appellants).
Following, the pendency of the Appeal No. CA/OW/EPT/SHA/02/2019, in this Court over/against the earlier interlocutory decision of the Tribunal made on 27/05/19, at the pre-hearing
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stage, Appellants had, on 14/6/19 sought adjournment of hearing of the Petition against the 3rd Respondent (INEC) which remained the only Respondent in the suit, by the Tribunal?s said decision. What transpired at the Tribunal on 14/6/19 were, as follows:
Nwankwo: I humbly apply for an adjournment for two weeks on the ground that the ruling of this Tribunal as it affects this petition has been appealed against and the record of proceedings have been compiled and transmitted to the Court of Appeal. I am aware that under paragraph 18 that appeal does not operate as a stay of proceedings. The brief of arguments has been filed and served.
Mogboh: We are ready for trial to continue, Sirs.
Tribunal to Nwankwo: Please start the petitioners? case.
Nwankwo: I am not ready Sirs. I repeat my application for adjournment.
Tribunal: Application for adjournment is refused. Counsel is open the case for the Petitioners.?
?Nwankwo: I do not have my witnesses here and therefore I will not be able to open the Petitioners? case.
Mgboh: May we apply that the Petitioners? case is foreclosed and we be allowed to
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call our witnesses. I will like to amend our applications my lords. Since we do not have a counter claim, we humbly apply that the petition be dismissed.
Nwankwo: The request of the Counsel for the Respondent cannot be granted. The Petitioners case has not been heard on merits and thus, the only action to betaken by the tribunal is to strike out the Petition.
Tribunal:
In view of the refusal of the Petitioners, (sic) commence the presentation of their Petition, and on the application of Counsel for the respondent for dismissal of same, the Petition of the Petitioners filed on 22/3/2019 is hereby dismissed for want of diligent prosecution.?
(See pages 8 and 9 of the Records of Appeal).
Dissatisfied with the above decision, Appellants filed this Appeal on 17/6/19 and formulated 3 grounds of appeal against the said Ruling of the Tribunal. They filed their Brief of Argument on 24/6/19 and distilled two (2) issues for the determination of the Appeal; namely:
?1) Whether in or as at 14th day of June, 2019 when the lower Tribunal allegedly dismissed the Petition against the 3rd Respondent there was in law, any Petition or valid
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Petition pending upon which the Tribunal can exercise Jurisdiction to compel the commencement or continuation of hearing by the Appellants (Ground 1)
2) Whether the lower Tribunal was not bound by the its pre-Trial Report which allotted 14 days to the Appellants as Petitioners to prove their case as to dismiss same on the 2nd day of hearing for alleged want of diligent prosecution when the Appellants? time was still running and about 12 days remaining.
The 1st, 2nd and 3rd Respondents had filed preliminary objections to the hearing of the Appeal. They all complained that the Appeal was incompetent.
The 1st Respondent, who raised the preliminary objection in Respondent?s Brief, filed on 12/7/19 (pages 5 to 14) founded his objection on:
1) Incomplete Record of Appeal/Proceedings
2) Records of Appeal not compiled by the Secretary of the lower Tribunal
3) Non-service of the Notice of Appeal and
4) There is no complaint/Relief claimed against the 1st Respondent in both the Notice of Appeal and the Brief of Argument.
For the 2nd Respondent, (PDP), which filed Notice of Preliminary objection on 15/2/19 and an address
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thereto, it founded its objection on:
1) Grounds 1, 2 and 3 of the Notice of Appeal are incompetent and ought to be struck out.
2) The Notice and grounds of appeal are incompetent and ought to be struck out
3) The appeal ought to be struck out for want of jurisdiction of the Court to entertain same.
The 3rd Respondent (INEC), predicated its objection (raised in the Brief filed on 11/7/19 ? pages 3-6) on:
1) Non-service of Notice of Appeal
2) The grounds of Appeal in the Notice of Appeal are on mixed law and facts.
The Respondents also filed their respective briefs and distilled issues for the determination of the Appeal. 1st Respondent sole issue was:
?Whether the learned Judges of the Lower Tribunal were right to dismiss the Petition for lack of diligent prosecution.?
The 2nd Respondent adopted the two issues, distilled by the Appellant, while the 3rd Respondent formulated two issues too, as follows:
1) Whether the learned justices were not correct to dismiss the suit for lack of diligent prosecution
2) Whether there was a subsisting petition pending before the Court.
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The Appellants? Counsel filed Reply brief to the preliminary objection by the 3rd Respondent and also replied generally, on points of law, to the other preliminary objections, taken prior to the hearing of the Appeal.
RESOLUTION OF THE PRELIMINARY OBJECTIONS
The allegation of incomplete Records of Appeal cannot be sustained as the law permits an Appellant to compile the Records needed by him for the appeal, comprising material facts, proceedings and relevant documents to his Appeal. The Respondents also have responsibility to compile and transmit such other records that may be missing in the Records transmitted by Appellant, deemed relevant and needed by them (Respondents) to prosecute the Appeal. The Appellants are therefore not obligated to compile and transmit everything that transpired at the lower Court or Tribunal to the Appellate Court before their appeal can be entertained.
By Order 8 Rule 8 of the Court of Appeal Rules, 2016, the Records of Appeal:
shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and
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generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplication of documents and unnecessary repetition of headings and other merely formal parts of documents
By Order 8 Rule 6 of the Rules of this Court, 2016,
?Where any party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.
Of course, an Appellant has the duty of getting the Registrar of Court to compile and transmit the Records of Appeal to the Appellate Court, but where the Registrar fails to do so, Appellant is saddled with the responsibility of compiling and transmitting the relevant records, himself. See Order 8 Rules 3 and 4 of the Rules of this Court ? Court of Appeal Rules, 2016.
?It is true that paragraph 9 of the Election Tribunal and Court Practice Directions (2011) places the duty of ensuring the compiling the Records on the Secretary of the Tribunal. It says:
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?The Secretary shall within a period of not more than 10 days of the receipts of the notice of appeal, cause to be compiled and served on all parties, the record of proceedings.?
I do not think an Appellant breaches the Rules of this Court by compiling the Records, where waiting for the Secretary of the Tribunal would be fatal to his appeal or where he would be held to ransom. Appellants filed this Appeal on 17/6/19 and transmitted the relevant Records of Appeal to this Court on 19/6/19, following the dismissal of their Petition against the 3rd Respondent on 14/6/19, the Tribunal, having earlier dismissed the same suit against 1st and 2nd Respondents, for which they appealed.
The exigency of this Appeal appears to justify the action of the Appellants, in the circumstances of this case, and the Records of Appeal has been certified by the same Officer who certified the Notice of Appeal.
This same issue had earlier been considered by this Court in the earlier (sister) appeal, involving the same parties in this case: CA/OW/EPT/SHA/02/2019, delivered on 19/7/19 and this Court (a different panel) held:
?It appears to me that
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while paragraph 7 of the Practice Direction imposes an obligation on the Appellant with regards to the matters contained therein, while paragraph 9 imposes a duty on the Tribunal Secretary upon receipt of the Notice of Appeal to compile and serve on all the parties, the records of Appeal. It is my view that, the purpose of paragraph 9 of the Practice Direction is nothing other than to impose a duty on the Tribunal Secretary in the matter of compilation and transmission of records in an election appeal. Truly, paragraph 9 is silent on situations where, due to one reason or the other, the Tribunal Secretary would not be able to or is unable to compile and serve the record of appeal. It is common knowledge that Election Tribunals more often than not work under intense pressure, especially when it comes to matters of compilation of records of appeal.
Thus, in the situation such as this, should the Court of appeal reject a record of Appeal compiled by an Appellant who has duly compiled with paragraph 7 of the said Practical Direction? It is my view that Rules of Court should not be interpreted in such a way as would promote injustice. The fact that election
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matters are sui generis is not to say that the Rules and Practice that are put in place are to be interpreted in such a way that would lead to injustice. Thus, Appellant who has complied with paragraph 7 of the Practice Direction should not be made to suffer for the tardiness of or even negligence of the Tribunal Secretary.? See Israel & Anor Vs Dokun & Ors (2015) LPELR ? 41816 CA.
In that case (above) the Records of Appeal was held (by majority decision) to be validly compiled and transmitted to this Court and the objection discountenanced. Being the same objection repeated in this appeal (in the same case and same parties) I cannot depart from that earlier decision of this Court.
The Respondents had also complained about non-service of the Notice of Appeal on them, or the same being incompetent. However, they admitted service of the Records of Appeal wherein the Appellants? Notice of Appeal are also incorporated. And in the said Records of Appeal (the last page thereof) there is certification by Appellants? Counsel ?that the Respondents were served with the Notice of Appeal in this Appeal.?
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There is compliance of Appellants with paragraph 7 of the Practice Direction on the filing of the Notice of Appeal, and in requisite copies and payment of fees for service on all the Respondents. Even if the Secretary of the Tribunal had not served the Respondents with the Notice of Appeal, as stipulated in paragraph 8 of the Practice Direction, the fact that the Records of Appeal (with the Notice of Appeal,had been served on the Respondents therein), in my view, that has satisfied the requirement of the law, to accord respect to the processes, and that the Respondents were duly served.
By Order 2 Rule 1 (a) of the Court of Appeal Rules, 2016:
?Every Notice of Appeal shall subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the Notice of Appeal has, infact, been communicated to the Respondent, no objection to the hearing of the Appeal shall lie on the ground that the Notice of appeal was not served, personally.”
I am satisfied that the said Notice of Appeal had been communicated to the Respondents, whereof the Respondents also reacted to and filed their briefs to contest
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this Appeal.
The other issues raised by Respondents,that the grounds of Appeal contain mixed law and fact, and the allegation by 1st Respondent that the Notice of Appeal and the Brief have no complaint against him, are misconceived, in my view, considering the fact that this appeal is against a final decision of the Tribunal, dismissing the suit, and that the parties to the case, from the onset, were all the three Respondents on Record, despite the premature dismissal of the suit against the 1st and 2nd Respondents on 27/5/2019, which has since been faulted and restored in Appeal No.CA/OW/EPT/02/2019 on 19/7/19. See also Section 241 (1) (a) (b) of the 1999 Constitution as amended on filing of appeal on the merits; that it is as of right, when it is against final judgment, whether the ground of appeal is of law, mixed law and fact, or on law alone. See APC Vs John & Ors (2019) LPELR – 4703 CA Alaribe & Anor Vs Lawal & Ors (2019) LPELR ? 47065 (CA); Ekemezie Vs Ifeanacho & Ors (2019) LPELR ? 46518 (SC).
See also Champion Breweries Plc Vs Specialty Link Ltd & Anor. (2014) LPELR ? 23621 CA, where it was held:
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?…a final judgment of the High Court, sitting at first instance is appealable as of right without any need to seek and obtain leave…whether the grounds of appeal are of facts or mixed facts and law, or of law alone.”
I therefore see no merit in the said preliminary objections of 1st, 2nd and 3rd Respondents and the same are hereby dismissed.
On the main Appeal, Appellants? Counsel Nwabueze Nwachukwu Esq., has argued that when the Lower Tribunal dismissed the suit on 14/6/19 there was, in law, no Petition to be dismissed, since the Tribunal had already dismissed the same Petition on the 27/5/19, therebeing only one Petition ? EPT/AB/HA/01/2019 ? ENGR. NWABUEZE ONWUNEME & ANOR VS KELECHI ONWUZURUIKE & ORS, filed by Appellants at the Tribunal. Thus, Counsel said, the Lower Tribunal, having earlier dismisses the Petition on 27/5/19; the new order of dismissal of 14/6/19 was a nullity, and mere academic exercise. He relied on Uduaghan v Ogboru (2012)1 NWLR (Pt.1282) 521; NDP Vs INEC (2012)14 NWLR (Pt.1319)176.
Counsel also relied on Mohammed Vs Husseini (1998)14 NWLR (Pt.584) 138 ? 139 to say that a Tribunal cannot
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determine an issue twice, ?thus having determined the petition on 27/05/2019, the Lower Tribunal cannot determine the same again, more so, as the Appeal against the determination of 27/05/19 is yet to be disposed of and perhaps, the Petition restored for continuation and determination.? (See paragraph 5.05 of the Appellants? brief).
Counsel also relied on Nwogu and Anor Vs Eke & Ors (2015) LPELR ? 25996 CA to say that the Tribunal fell into grave error on 14/6/19, in dismissing the Petition, again. The Court in that case had held:
?It is my resolve that though the Petition has three Respondents that did not and would not make the Petition ?three-in-one?, it is one petition.?
On issue 2, Counsel, said that the Tribunal, having issued a pre-hearing Report at the end of the prehearing session, wherein Appellants (as petitioners) were allotted 14 days to prove their case, the Tribunal was bound by that Report and therefore could not terminate the right of Appellants to prove their case before the effluxion of the said 14 days, as that would amount to denial of fair hearing. He relied on the case of
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Mohammed Vs Husseini (supra); Ishaku Vs Knatiok (2012)7 NWLR (Pt.1300) 457 ACN Vs Lamido (2012)49 (PH) NSCQ 652, and on Section 36 of the 1999 Constitution.
Responding, Dr. S.O. Hagler, Counsel for the 1st Respondent, on issue one, said the Tribunal was justified to dismiss the appeal on the application of 3rd Respondent, as Appellant was not ready to proceed with the matter; that Appellants were given enough opportunity to call their case but they bluntly refused. He relied on Osho & Ors Vs A.G. Ogun State (2015) LPELR ? 41669 CA, to say that a party which has exhibited so much apathy in the prosecution of his case cannot be heard to complain. He also relied on Nwadiogbu & Ors Vs Anambra/Imo River Basin Dev. Authority & Anor. (2010) LPELR ? 2089 SC, Erinfolami Vs S.G.B. Nig Ltd (2008)7 NWLR (Pt.1086) 306; Onah Vs Okom (2011) LPELR ? 9057 and other cases to say that, where a party is given opportunity to present his case and he fails to take advantage of it, he cannot complain of denial of fair hearing.
?
On the issue of the Tribunal being functus officio as at 27/5/2019 when it dismissed the Petition against 1st and 2nd
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Respondents, Counsel said that did not accord with the law. He relied on Buhari Vs INEC & Ors (2008) LPELR ? 814 SC on the term functus officio? to mean ?task performed; having fulfilled the function, discharge the office, or accomplished the purpose, and therefore of no further authority.? He also relied on Onuoha Vs Obonna (2018) LPELR ? 46256. Counsel said that the Tribunal was not functus officio in the matter as at 14/6/19 in respect of 3rd Respondent, but was in respect of 1st and 2nd Respondent; that the suit was subsisting as against the 3rd Respondent; that the parties had been participating in the proceedings, up to the 14/6/19, when the Tribunal became functs officio in the case. He relied on Milan Industries Nig. Ltd Vs Trevi Foundation Nig. Ltd (2019) LPELR ? 46919 CA, Nigeria Army Vs Iyela (2008)18 NWLR (Pt.1118) 115.
On the Issue of 14 days of hearing allotted to the Appellant, in the Pre-hearing Report, Counsel said Appellant had abused the time frame by not presenting their case and so the Pre-hearing Report would not be followed, as it would amount to wasting precious time of the Tribunal, to
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keep to the 14 days allowed.
He urged us to resolve the Issues against Appellants and to dismiss the Appeal.
The 2nd Respondent?s Counsel, O.O. Nkume Esq., who settled the Brief of 2nd Respondent, on Issue one, said Appellant?s Issue one, predicated on the ground one of the notice of Appeal was incompetent, as canvassed in the notice of preliminary objection, and urged us to upholdthe same;that, an issue distilled from an incompetent ground of appeal is itself incompetent and worthless. He said that in this case, the second (sic) ground of appeal and the issue distilled therefrom ought to be struck out. He added that by the ruling of the Honourable Court on the 27/5/19, the Petition was still valid against the 3rd Respondent, and so the Tribunal was right in dismissing the Petition on 14/6/19 for failure of Appellants to call their witnesses on the 2nd day of hearing.
?
On Issue 2, Counsel said the Issue 2, distilled from ground 2 of the appeal was also incompetent as canvassed in the preliminary objection. He added that the Tribunal had discretion to adjourn or refuse the application for the adjournment; that it exercised its
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discretion, properly, when it dismissed the Petition upon refusing the application for adjournment, since Appellants failed to present their witnesses.
The 3rd Respondent?s Counsel, A.O. Mogboh Jnr. who settled the Brief, argued the Issue one and two together, and said that Appellants cannot complain of denial of fair hearing, having been given opportunity to present their case, but they were using other tactics to tilt the clock of justice. He relied on Erinfolami Vs SGB Nig. Ltd (2008) 7 NWLR (Pt.1086) 306; Akinduro Vs Alaya (2007) 15 NWLR (Pt.1057) 312; Ivbiyaro Vs Francis (2002) 1 NWLR (Pt.747) 33; Ajayi Vs Omorogbe (1993) NWLR (Pt.301) 512; Onah Vs Okom (2011) LPELR ? 9057 CA.
He also relied on Okoro Vs Okpo (1988) 3 NWLR (Pt.) 540 on the effect of dismissal of a Suit,in limine, and reminded us of the fact that, we as appellate Court, cannot substitute our views/discretion with that of the trial Court/Tribunal. He relied on Banna Vs Telepower (Nig) Ltd (2006) 15 NWLR (Pt.1001) 198.
Counsel, however, relied on the case of Mohammed Vs Husseini (supra) to submit, as to the decision of that Court:
?… it is important to
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observe that a judge is functus officio, if he gives judgments on the merits. A judgment in default is not a judgment ?on the merits?… A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction.? (See 11 page (paragraphs 4.15 and 4.16 of the 3rd Respondent?s Brief).
On the status of the Petition EPT/AB/HA/01/2019, as at 14/6/19, Counsel said the Petition was on the cause list on 13/6/19 and 14/6/19; that though the 3rd Respondent had raised the issue of propriety of the continuation of the Petition as against the sole remaining respondent, the Tribunal in its discretion had stated it could continue, and gave dates 13th and 14th June, 2019 for the trial to commence; he argued that on the said date, 13/6/19, Appellants did effectively stated their unwillingness to continue on the fact that they had an appeal pending and not on the propriety of the pendency of the Petition as against the sole respondent; that the Tribunal then adjourned to 14/6/19, when it dismissed the Petition, as it could not stay proceedings of the case, pursuant to paragraph 18 of the Electoral Tribunal and Court Practice Direction, which states:
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?An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for stay of proceedings before a Tribunal.?
Counsel said the trial Court could not have been functus officio, as there still remained a respondent on record, whose fate as alleged in the petition was yet to be determined by the Tribunal.
He urged us to resolve the Issues against Appellants.
RESOLUTION OF THE ISSUES
I shall consider this appeal on the two Issues distilled by the Appellants and adopted by the 2nd and 3rd Respondents, (and the 3rd Respondent with some modifications in the wording of the same). The 1st Respondent rather summarized the two Issues into one ? whether the learned Judges of the lower Tribunal were right to dismiss the Petition for lack of diligent prosecution.?
I shall however take the two Issues, together ? whether the Tribunal was right to dismiss the Suit on 14/6/19 for lack of diligent prosecution and whether, in fact or in law there was a subsisting Petition before the Tribunal to be dismissed on that date?
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The background to this appeal leaves a lot to be desired and it appears to be part of the logjam unexpected by the framers of the law, where the Court or Tribunal errs in the way it construes the rules or procedure of Court in the course of trial, and/or so takes a decision that triggers confusion and frustrates the case before it. Such error, in my opinion, was made by the Learned Judges of the Lower Tribunal on 27/5/19 when the Tribunal pronounced on the dismissal of the Petition (EPT/AB/HA/01/2019) against 1st and 2nd Respondents, because the pre-hearing requests in respect of the 2 Respondents were filed before close of pleadings!
Such problem had been resolved in many decided cases, including Labour Party Vs Bello & Ors (2016) LPELR ? 40848 CA:
?Where you have more than a Respondent in a Petition, pleadings will not close until the expiration of the time limited in those Paragraphs of the Schedule, particularly 16 thereof. In effect, an Appellant must wait for the time frame or period of time allocated to the parties to file Replies before the Appellant can take out Form TF007 within 7 days of the service of the Respondent?s Reply, filed within the time
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permitted under Paragraph 12(1) of the 1st Schedule, on the Appellant: Paragraph 16 (1) applies mutatis mutandis to each and every Respondent to this Petition, otherwise it will be a breach of Section 36 (1) of the 1999 Constitution of Nigeria as amended.”
See also Uwajumogu Vs Nneji & Ors (2017) LPELR ? 4135 (CA).
Thankfully, that erroneous decision has since been reversed by this Court, on appeal, in Appeal No. CA/OW/EPT/SHA/02/2019, delivered on 19/7/19, which set aside the erroneous decision, and ordered the Petition to be restored and remitted to the Tribunal for hearing on the merit by another panel differently constituted. See pages 27 of the said Judgment as per H.S. Tsammani JCA, where he said:
?I am therefore of the view that this appeal has merit and is accordingly allowed. Accordingly, the Ruling of the majority members of the National and State House of Assembly Election Petition Tribunal, Umuahia Abia State, delivered on the 27th day of May, 2019 is hereby set aside. Consequently, this Petition No. EPT/AB/HA/01/2019 is remitted to the Tribunal for hearing on the merits by another panel differently constituted.?
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The above decision is very gamane and relevant to this Appeal, as the decision, clearly, confirms the fears and submission of the Appellants, that there was no more Petition before the lower Tribunal on which it (Tribunal) purportedly exercised jurisdiction to dismiss on 14/6/19, having earlier dismissed the same Petition, EPT/AB/HA/01/2019,on 27/05/19 ? as against the 1st and 2nd Respondents!
That means the order of the Tribunal made on 14/6/19 was an exercise in futility. A Court cannot dismiss the same case twice or in piece-meal, because, having made a formal order of dismissal of the case, it became functus officio, to entertain it again to pronounce on the same case; that position holds, except there is an order of appellate Court, i.e. if the first order was appealed and the appellate Court ordered the Lower Court to take back the case and hear, as done in CA/OW/EPT/SHA/02/2019.
Of course, an order of dismissal of a Suit suggests that the Suit had been heard to finality on the merits before such order is made! See General Electric Company Vs Akande & Ors (2010) LPELR ? 8097 (SC) and Ejiofor Vs Onyekwe & Ors
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(1972) LPELR ? 1068 SC:
?An Order of dismissal operates as estoppel per rem judicata and, ipso facto, bars the losing party for all times from re-litigating the same subject matter.?
Thus, when the Lower Tribunal dismissed the Petition on 27/5/19, against the 1st and 2nd Respondents, it, un-wittingly, dismissed the Petition of the Petitioners, as whole, as there was no way the Petitioners could have lawfully pursued the Petition against the 3rd Respondent, alone, especially as the Tribunal did not strike out the names of the 1st and 2nd Respondents in the Suit, but dismissed the Petition!
Appellants have already been vindicated by the success of the Appeal No. CA/OW/EPT/SHA/02/2019, delivered on 19/7/19, which restored the Petition No. EPT/AS/HA/01/2019 (the same subject matter of this appeal) and ordered it to be heard on the merits by another panel, differently constituted. That ends the charade and frivolities of the Tribunal relating to is orders of 14/6/19, made on a Petition it had already or earlier dismissed. That order of 14/6/19 was, as earlier stated, a nullity, as the Petition No. EPT/AB/HA/01/2019 had,
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since on 27/5/19, ceased to be pending before the Tribunally, legally speaking.
This Court (by another panel) had earlier in the case of CA/OW/EPT/SHA/16/19: DESTINY AKARAKA NWAGWU & ANOR VS UZODIKE AERON & ORS, delivered on 19/7/19, pronounced on a similar appeal (which is on all fours with this Appeal) relating to a similar flaws by the same Tribunal members in Umuahia, in Petition No. EPT/AB/SHA/02/2019. This Court held:
?It is on record that the Tribunal dismissed the Petition against the 1st and 2nd Respondents in the Petition, and the Petitioners rushed to the Court of Appeal to challenge the dismissal; in between the Order of dismissal and the appeal, the Tribunal issued pre-hearing report and directed the Petitioners to proceed to prove their case, this in my view, based on materials before the Court, meant proving the Petition against the only surviving 3rd Respondent (INEC) in the absence of necessary respondents in the petition, with all due respect, proceeding to hear and determine the petition without the necessary parties is purely academic and will not be of any utilitarian value. A person whose election is questioned
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needs to be made an integral part of the petition, and in the instant case, the presence of necessary parties is a subject matter of appeal before this Court, the Lower Tribunal ought to have applied the provisions of paragraph 25(1) to sustain the Petition…
The Ruling delivered by the Lower Tribunal on the 15th day of June, 2019 is EPT/AB/HA/02/2019 dismissing Appellants Petition is hereby set aside… it is hereby Ordered that the Petition be restored on the cause list of the Lower Tribunal, to be heard and determined by another panel.? See Pages 19 and 20 of the said Judgment, Per Tijjani Abubakar JCA.
This Court cannot go outside that earlier decision of our Court, and as also pronounced in CA/OW/EPT/SHA/02/2019.
?This Appeal is, therefore, meritorious and allowed as I resolve the Issues for the Appellants. Having earlier ordered the restoration of the Petition EPT/AB/HA/01/2019 to the List of the Tribunal on 19/7/19, to be heard by another Panel differently constituted, that order is affirmed herein and shall be complied with, as the order of Tribunal made on 14/6/19 is hereby dismissed, being incompetent and a nullity.
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Parties to bear their respective costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
RITA NOSAKHARE PEMU, J.C.A.: I agree
?
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Appearances:
NWABUEZE NWANKWO, Esq.For Appellant(s)
DR. S.O. HAGLER for the 1st respondent
O.O. NKUME, Esq. (who brief was argued by U.C. NNENJI, ESQ) for the 2nd respondent
C.S. AGBAFE, Esq. for the third respondentFor Respondent(s)
Appearances
NWABUEZE NWANKWO Esq.For Appellant
AND
DR. S.O. HAGLER for the 1st respondent
O.O. NKUME Esq. (who brief was argued by U.C. NNENJI ESQ) for the 2nd respondent
C.S. AGBAFE Esq. for the third respondentFor Respondent