HON. JOEL OKECHUKWU OKEKE & ANOR v. MR. ROMANUS OBI & ORS.
(2012)LCN/5175(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of February, 2012
CA/E/EPT/61/2011
RATIO
THE POSITION OF THE LAW WHERE A GROUND OF APPEAL DOES NOT ARISE FROM THE DECISION OF A TRIAL COURT
In Gambari v. Mahumud (2008) 14 NWLR (Pt. 1107) Pg. 209 at 235 this court held as follows: “In law, an appeal is cognizable where it relates to a decision of the trial court as defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999. Where therefore, a ground of appeal does not arise from the decision of a trial court that ground of appeal is incompetent and liable to be struck out.” HELEN MORONKEJI OGUNWUMIJU, J.C.A.
SUPREMACY OF THE CONSTITUTION: WHETHER A COURT HAS THE DISCRETION TO AMEND THE CLEAR AND UNEQUIVOCAL PROVISIONS OF THE CONSTITUTION
The issue here is straight forward and has been settled by the Supreme Court even before this appeal was heard. No court in the land has the discretion to amend the clear and unequivocal provisions of the Constitution. The 180 days provided by the constitution within which a trial can be conducted is sacrosanct. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. HON. JOEL OKECHUKWU OKEKE
2. PEOPLES DEMOCRATTC PARTY (PDP) ANAMBRA STATE CHAPTER Appellant(s)
AND
1. MR. ROMANUS OBI
2. ALL PROGRESSIVE GRAND ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RETURNING OFFICER, ORUMBA NORTH STATE CONSTITUENCY.
5. THE WARD COLLATION OFFICER AWGBU WARD 1
6. THE WARD COLLATION OFFICER AWGBU WARD II
7. THE WARD COLLATION OFFICER NDIOWU WARD
8. THE WARD COLLATTON OFFICER OKPEZE/NDIUKWUENU WARD
9. THE WARD COLLATION OFFICER NANKA WARD 1
10. THE COLLATION OFFICER NANKA WARD 2
11. THE PRESIDING OFFICER AMUGO PRIMARY SCHOOL, AWGBU 1, POLLING UNIT 001
12. THE PRESIDING OFFICER AMUGO PRIMARY SCHOOL AWGBU 1, POLLING UNIT 002
13. THE PRESIDING OFFICER CENTRAL SCHOOL 2 AWGBU 1, POLLING UNIT 004
14A. THE PRESIDING OFFICER EZIOBODO SQUARE, NDIOWU WARD, POLLING UNIT 003
14B. THE PRESIDING OFFICER UHUANA UNUDIABO NDIOWU WARD, POLLING UNIT 001
15. THE PRESIDING OFFICER EKE AWGBU 1, AWGBU WARD, 2 POLLING UNIT 010
16. THE PRESIDING OFFICER EKE AWGBU 2, AWGBU WARD, 2 POLLING UNIT 011
17. THE PRESIDING OFFICER CENTRAL SCHOOL, OZU 1, NDIUKWUENU/OKPEZE WARD, POLLING UNIT 001
18. THE PRESIDING OFFICER CENTRAL SCHOOL OZU 2 NDIUKWUENU/OKPEZE 1 POLLING UNIT 002
19. THE PRESIDING OFFICER CMS OKPEZE NDIUKWUENU/OKPEZE 1, POLLING UNIT 003
20. THE PRESIDING OFFICER ISINGWU NWAGU CENTRAL SCHOOL, NANKA WARD 1, POLLING UNIT 006.
21. THE PRESIDING OFFICER CENTRAL SCHOOL IFITE, NANKA WARD 1, POLLING UNIT 016
22. THE PRESIDING OFFICER LOWER S.T.D. IFITE NANKA WARD 1, POLLING UNIT 018 Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading the Judgment): This appeal was decided and judgment pronounced on 6/1/12 with reasons reserved. I now give my reasons.
This is an appeal against the ruling of the Tribunal delivered on 11/11/2011 wherein the Tribunal struck out the petitioners’/Appellants petition on the basis that it had less than 24 hours to conclude hearing of the petition wherein the Respondents had yet to lead evidence, addresses yet to be filed and adopted and judgment to be given.
The Appellants appealed against the ruling of the trial Tribunal as aforesaid and challenged the whole decision. The Appellants filed 4 grounds of appeal and distilled three issues therefrom in their brief filed on 14/12/11. They are set out below
1. Whether the trial Tribunal was right in striking out the petition peremptorily not minding the fact that there were almost two days left before the expiration of the 180 days (Ground 1)
2. Whether the electoral act empowers the tribunal to streamline the number of witnesses to be called by each party so as to meet up with the 180 days and thus decide the petition on its merits (Ground 2)
3. Whether the tribunal having seen there is serious question or issue to be tried in the petition did well in striking same out rather than making a sacrifice or intensify effort to determine the question and deliver its judgment to do substantial justice (Grounds 3 & 4).
The 1st and 2nd Respondent filed their brief on 19/12/11 and incorporated arguments in respect of the preliminary objections raised. The 3rd-22nd Respondents filed a notice of preliminary objection separately on 19/12/11 and incorporated arguments in respect of same in their brief filed on 19/12/11.
The main thrust of the objection raised by the Respondents is that the grounds of appeal particularly grounds B and C are incompetent and the issues raised therefrom are likewise incompetent.
Learned counsel for the 1st and 2nd Respondents argued that ground “B” and “C” raise fresh issues not raised at the trial Tribunal for which leave was not first sought and obtained to argue in this court and that these grounds are therefore incompetent. He cited Okafor v. INEC (2010) 3 NWLR (Pt.1180) Pg 1 at Pg. 25-26; Salami v. Wema Bank Nig. Plc. Pt.1190 Pg. 341 at 356.
He further contended that the issues raised in paragraphs 2.24-2.28; 4.01-4.02; 4.16, 4.18; 4.22; 4.24; 4.25, 4.30; 4.37, 4.38, 4.40; 4.43; 4.46, 4.48 (ii) (iii) (iv); 4.50, 4.52; 4.53, 5.05; 5.06, 5.07, 5.08; 5.11; 5.12, 6.02 and 6.03 of the Appellants brief were predicated on matters not borne out from the ruling appealed against. He argued that no party has the right to predicate an argument in his brief on facts which were not contested before the trial court. He cited Arhor v. Adejoh (2010) 6 NWLR Pt.1191.
The 3rd-22nd Respondents also objected to the same grounds and argued that the issues raised in B and C did not arise from the decision of the trial Tribunal. He also cited authorities to the effect that such grounds must be struck out as incompetent.
Learned Senior counsel to the Appellants in the reply brief based his argument on the merit of the grounds of appeal and reargued the issues already adumbrated in the Appellants brief. In my humble view the Appellants could not relate the grounds with the proceedings at the trial Tribunal.
The two grounds of appeal objected to are as follows and set out seriatem as B and C.
3B “The learned trial Tribunal erred in law when it abdicated its responsibility in not stream-lining the number of witnesses to be called by each party to meet up with the 180 days and thus decide the petition on its merit”
(3C) The tribunal erred in law when after allowing the Respondents to go on a wild frolic of calling as many as 8 witnesses and still wanted to call some more, the Tribunal got choked and it held thus:
“Judgment should be delivered tomorrow 12/11/2011, which is 180 days from the 17/5/2011 wherein the petition was filed… Yesterday 10/11/2011 the trial continue (sic) with 1st set of Respondent opening their case and adjourned today for continuation… and come up with a considered judgment by tomorrow 12/11/2011”
There is no doubt in my mind having read the record of proceedings that the issues sought to be raised by grounds B and C were not raised by the parties at the trial Tribunal.
In Gambari v. Mahumud (2008) 14 NWLR (Pt. 1107) Pg. 209 at 235 this court held as follows:
“In law, an appeal is cognizable where it relates to a decision of the trial court as defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999. Where therefore, a ground of appeal does not arise from the decision of a trial court that ground of appeal is incompetent and liable to be struck out.”
I am of the view that grounds 3B and 3C of the grounds of appeal are incompetent and must be struck out. They are hereby struck out. We are left with only grounds A and D. Of course, ground D challenging the ruling on the basis that the ruling is against the weight of evidence is completely misconceived. The ruling of the Tribunal was based on the bald provisions of the constitution putting limitation of time to Tribunal proceedings. The Tribunal did not consider any evidence at all since parties had not closed their case.
In the circumstances ground 3D is also hereby struck out.
The only issue left is one which can competently be derived from ground A of the grounds of appeal. That is issue 1 as distilled by the Appellant. This is the sole issue to be decided in this appeal.
Learned Appellant counsel argued that the position of the law in respect of the doctrine and principle of effluxion of time is to the effect that the doctrine cannot be evoked unless the stipulated date has elapsed. In other words, effluxion of time occurs or becomes activated the day after the expiration of the time or date.
It follows that the learned trial tribunal made a grave error when it activated the doctrine of effluxion of time on the eve of the stipulated 180 days. So in other words, the tribunal erred in law when it struck out the Appellant’s petition peremptorily on 11/11/2011 before the expiration of the 180 days which was on 12/11/2011.
Learned counsel for the 1st-2nd Respondent argued that the fault for the delay in the hearing of the petition rests squarely on the petitioners/Appellants. He argued that the learned trial Tribunal was bound by the provisions of the constitution. He submitted that it would have been an exercise in futility for the court to proceed further knowing that it was impossible to meet the constitutional time limit.
Learned counsel to the 3rd-22nd Respondent on his part urged this court to take a close look at the ratio and ruling of the trial tribunal which made some far reaching findings before it struck out the petition. He argued that the Appellant did not appeal against the said findings to the effect that Tribunal on its part made every effort to ensure access to justice by the parties and that the lethargy of the Appellants as petitioners was the principal cause of the delay.
A. Let us look at the sequence of events.
On 11/11/2011, the Tribunal asked the counsel for both parties to address it on the possibility of concluding the hearing and delivering judgment the next day being 12/11/2011 the day the petition would elapse by effluxion of time.
After the oral address of counsel on both sides, the Tribunal at 10.30am delivered the Ruling contained in pages 918-922 of the Record of Appeal.
Now S. 285(6) of the 1999 constitution provides as follows:
“An election Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition”.
The trial Tribunal held at Pg. 919-920 of the record as follows:
“The court record is clear, it speaks for itself, in the light of the fact that we did all we could humanly do to allow petitioner to ventilate their grievance, under the said question election. Yesterday 10/11/2012, the trial continue with 1st set of respondents opening their case, and adjourned today 11/11/2011 for continuation. Today 11/11/2011 faced and stirred with the reality of Time the tribunal asked counsel to parties to address it, on how possible, it would be able to close hearing of the 1st set of respondent, and the hearing of the 2nd set of respondent, and how all learned counsel would be able to file written address, exchange and serve same, and then adopt their various address before the court would collate the entire case, and come up with a considered judgment by tomorrow 12/11/2011. In the course of submission all respected learned counsel, raised their view and exposed the impossibility, practically for such an excise to be humanly possible. Dr. G. O. Okafor for petitioner said he will make oral address, after the close of 1st respondents case, yet the respondent are yet to close their case. The 2nd set of respondent are yet to open their case, whereby counsel to 2nd set of respondent say he has (7) seven witnesses to filed in defence.
It is imperative to note that in the need to do justice to all and sundry, the pre hearing session of this petition commenced on 20/10/2011, for which we have continued to do all humanly practicable means in the temple of justice to hear this petition.
Now having heard from all the learned counsel as to the way forward, we can only arrive at conclusion, that there is no way forward. We should not engage in wild goosed chase, beating about the wind without direction, knowing fully well, that by tomorrow (180 days as constitutionally provided to deliver written judgment) is not practicable. We pause to find a way out, we reflect to think of any magic, we find none.”
The trial Tribunal held further as follows:
“This petition has less than 24 hours to go, to the expiration of the 180 days within which a judgment is to be delivered, yet hearing of witness for 1st set, and 2nd set of respondent is yet to be concluded; let alone filing of written address, and adoption, before the written of judgment and delivery of same.
There is nothing humanly possible to correct this natural accident that has bedeviled this petition; it is only to question our Creation who has Created Time. We beg not to so question. We have no alternative than to strike out the petition, based on the aforementioned reason. Consequently therefore the petition EPT/AN/HA/41/2011 is struck out.
The issue here is straight forward and has been settled by the Supreme Court even before this appeal was heard. No court in the land has the discretion to amend the clear and unequivocal provisions of the Constitution. The 180 days provided by the constitution within which a trial can be conducted is sacrosanct.
I commend the Tribunal for not indulging in a useless exercise by continuing with a trial that would have been inchoate. Practicality and common sense prevailed. It would be relevant to say here that the petitioners are shutting the barn door after the fowl has escaped.
From the record of proceedings the delay in prosecuting the petition can be laid at the door of the petitioners. It does the party no credit to fault the Tribunal for refusing to indulge in a useless and impossible exercise.
In relisting the Appellants’ petition on 29th July 2011, the trial Tribunal Justices Y. A. Adesanya, F. E. Awolalu and W. I. Leha of Panel 2, Election Tribunal, Awka, Anambra State had this to say on the non-challant attitude of the Appellants at pages 857 of the record:
“it must however be said that the petitioners and their counsel are not absolved from fault in the circumstance. A situation where a petition of which time is of the essence is filed and two months down the line, counsel cannot ascertain service and he was not put on inquiry to take further steps like filing a motion ex-parte for substituted service is to say the least preposterous. It smacks tardiness and lack of diligence.”
It is of no use heaping blame on the court when the petitioner is the architect of his own misfortune.
In the circumstances, I affirm the ruling of the trial tribunal.
This appeal is without merit and it is hereby dismissed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had a preview of the reasons for the lead judgment of my learned brother, Ogunwumju, JCA. I fully agree with same and adopt them as mine. I too dismiss this appeal. I abide by all the consequential orders of my learned brother.
IGNATUS IGWE AGUBE J.C.A: I have read the lead judgment of my learned brother H. M. OGUNWUMIJU, JCA, in advance which judgment is succinct and has addressed all the issues at stake.
I have nothing more to add than to concur that the Appeal lacks merit and should be dismissed,
I also do and abide by all other consequential orders as made by my learned brother.
Appearances
Dr. G. O. OkaforFor Appellant
AND
A. C. Anaenugwu for the 1st and 2nd Respondent with him T. U. Oguji, Olisa Machie.
S. O. Ibrahim Chief Legal Officer INEC for the 3rd -22nd RespondentsFor Respondent
