IKECHI EMENIKE v. CHIEF T. A. ORJI & 20 ORS
(2008)LCN/3044(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of April, 2008
CA/PH/EPT/475/2007
RATIO
INTERPRETATION OF STATUTE: WHETHER A PROVISION OF A STATUTE MAY BE INTERPRETED IN ISOLATION
It is trite and settled principle of interpretation that a provision of the constitution or a statute should not be interpreted in isolation but within the central con of the constitution or statute as a whole. In other words, while construing the provisions of a section of a statute, the whole of the statute must be read for the purpose of the apt determination of the appropriate intended meaning and effect of the exact words needing interpretation. See the case of Buhari and Anor. Vs. Obasanjo and Ors. (2005) 13 NWLR (Pt.941) 1 (219). Where however, the words of a statute are plain and unambiguous, same would not require an interpretation but should rather be given its natural and ordinary meaning. Per PAUL ADAMU GALINJE, J.C.A.
BINDINGNESS OF A COURT ORDER ON THE PARTIES IN A PROCEEDING
An order of Court remains an order of that Court and subsists until it is set aside on appeal. It does not matter whether the order is regular or irregular, valid or invalid, same must be obeyed’ Where a party forms an opinion that the order is not valid, the proper procedure to follow is to take steps to have the order set aside. See P. P. M. C. Ltd v. Delphi Pet. Inc (2005) 8 NWLR (Pt. 928) 458: Integrated Builders v. Domzag vent (Nig) Ltd (2005) 2 NWLR (pt.909) 97 and Oshiomhole v. F.G.N. (2005) 1 NWLR (907) 414. Per PAUL ADAMU GALINJE, J.C.A.
Before Their Lordships
SAKA ADEYEMI IBIYEYEJustice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
O. ARIWOOLAJustice of The Court of Appeal of Nigeria
O. G. SHOREMIJustice of The Court of Appeal of Nigeria
Between
IKECHI EMENIKEAppellant(s)
AND
CHIEF T.A. ORJI & 20 ORSRespondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Abia State Governorship and Legislative Houses Election Tribunal (henceforth to be referred to as the Tribunal) which was delivered on the 6th of October, 2007.
On the 14th day of April, 2007, Gubernatorial Elections were held in all the 36 States of the Federal Republic of Nigeria by the Independent National Electoral Commission (INEC). The Appellant herein was a candidate sponsored by the All Nigeria Peoples Party (ANPP) in that election in Abia State. The 1st and 2nd Respondents were also candidates in the said election, under the platform of Progressive Peoples Alliance. They contested for the position of Governor and Deputy Governor respectively.
At the conclusion of the election, the 1st and 2nd Respondents were declared duly elected as Governor and Deputy Governor of Abia State by INEC, the 21st Respondent herein, filed a petition at the Tribunal in which he challenged the election result.
The relief sought by the Petitioner reads thus: –
“That the 1st Respondent’ whose election is; hereby questioned was at the time of the election not qualified to contest the said election and not eligible to hold the office of, or to be elected as Governor of Abia State.”
The grounds upon which the Petitioner founded his petition are set out at pages 3-5 of the record of this appeal. The Respondents filed replies to the grounds of the petition. Issues having been joined the Petition proceeded to trial. At the end of the trial and in a reserved and considered judgment, the Tribunal dismissed the Appellant’s petition and affirmed the declaration and return of the 1st and 2nd Respondents as duly elected Governor and Deputy Governor of Abia State.
Aggrieved by this decision, the Appellant appealed to this Court. His notice of appeal dated 22nd October, 2007 and filed on the 23rd October, 2007 contains three grounds of appeal which I reproduced hereunder without their particulars as follows: –
“1. The Tribunal erred in law in its conclusion that the 1st Respondent was at the time of the election into the office of Governor of Abia State on 14th April, 2007 qualified to contest the said
election.
2. The Tribunal erred in law when it held: –
“We are also in agreement with the submission of the learned silk of counsel to the 3rd to 21st Respondents in paragraphs 3.45 and 3.46 of his address wherein he stated that since the process leading to exhibit “A” has been declared a nullity, it will be idle to challenge the qualification of the 1st Respondent to contest the said election on the purported indictment contained in Exhibit “A”.
3. The judgment is against the weight of evidence.”
In line with the relevant rules governing election appeals in this Court, parties filed and exchanged briefs of argument.
From the three grounds of appeal, the Appellant distilled two issues for the determination of this appeal in his brief of argument dated 10th November, 2007 and filed on the 22nd November, 2007. The two issues read as follows: –
“(i) was the tribunal correct in its conclusion that the 1st Respondent was at the time of the election into the office of Governor of Abia State on 14th April, 2007, qualified to contest the said election.
(ii) Did the tribunal breach the Petitioner/Appellant’s right to a fair hearing by failing to consider a fundamental ground on which his case was based.”
In their joint brief of argument, dated 28th November, 2007 and filed on the 3rd December, 2007, the 1st and 2nd Respondents distilled only one issue for the determination of this appeal and it reads thus: –
“Whether the Tribunal below was right when it decided that the 1st Respondent was at the time of the questioned election not disqualified to contest the said election and that the Petitioner/Appellant had failed to prove otherwise.”
The 3rd -21st Respondents also filed a joint brief of argument on the 18th January, 2008. By the order of this Court, the said brief was deemed filed and served on the 21st of January, 2008. Only one issue was formulated on their behalf and it reads: –
“Whether the Tribunal was right in holding that the 1st Respondent was at the time of the questioned election not disqualified to contest the said election.”
Appellant finally filed a reply brief on the 11th January, 2008.
The issues raised by the parties in their respective briefs are similar.
However after a careful consideration of the submissions of learned counsel for the parties, I am of the firm view that the only issue calling for the determination of this appeal is: –
“Whether the indictment of the 1st Respondent in a white paper, exhibit “A” can be a reason for the disqualification of the said 1st Respondent after same exhibit “A” had been set aside and quashed by an order of a competent Court.”
Mr. O. A. Obianwu, learned senior counsel for the Appellant who settled the Appellant’s brief of argument forcefully submitted in argument that the 1st Respondent herein was indicted by a Government White Paper on the Report of the Administrative Panel of Inquiry on Alleged Corrupt Practices by some Public Officers and other Persons, Exhibit A, which was published in February 2007 for fraud and embezzlement. According to the learned senior counsel, the publication of the white paper is a conclusive prove that the Federal Government had accepted the report of the Administrative panel which it had earlier appointed.
In a further argument, learned senior counsel submitted that the 1st Respondent did not personally file any suit to vacate the indictment as such he stands disqualified to contest for any elective office, by virtue of Section 182(1) (i) of the 1999 Constitution of the Federal Republic, of Nigeria and Section 145 (i) of the Electoral Act 2006.
Learned senior counsel made reference to the view of the Tribunal at page 388 of the record of this appeal, where the Tribunal referred to the case of Action congress & 1 OR. V. INEC(2007)12 NWLR(pt.1048)22 and concluded that exhibit ‘A’ cannot stand, and contended that the Tribunal was wrong. According to the learned senior counsel, the words used in the sections of the constitution and the Electoral Act above are clear, precise and unambiguous as such they are in line with the fundamental principle of constitutional interpretation which this Court is urged to give effect to. In a further submission learned senior counsel further contended that where words used in an enactment or instrument are clear and unambiguous, the Court will give those words their natural meaning. In aid the following authorities were cited: -Chief Chukwuemeka Ojukwu v. Chief Olusegun Obasanjo & 3 Ors (2006) 2 EPR 242; Attorney General Bendel State v. Attorney General of the federation (1981) SC 1; Horizon Fibres (Nig) Plc v. M. V. Baco Liner & 3 Ors (2002) 8 NWLR (pt.7690) 488 at 489 ratio 18; Dr. Patrick Nwangwu & Anor v. Barr. John Duru (2002) NWLR (pt.751) 265 at 281 ratio 8.
While arguing the 2nd issue, the Appellant admitted the existence of exhibit “B’, which is a judgment of the Federal High Court Kaduna. In that judgment, the White Paper exhibit ‘A’ and the report of the Administrative panel upon which exhibit ‘A’ was founded were set aside and quashed. The argument of the learned senior counsel however is that the Tribunal did not consider the effect of exhibit ‘C’ on which the Appellant hinged his case and that the 1st Respondent was not a party to the case which gave rise to exhibit ‘B’. For that reason, learned counsel says the 1st Respondent cannot take the benefit of exhibit ‘B’. It is to be noted that exhibit ‘C’ is the injunction which the Federal High Court Kaduna granted to restrain INEC from giving effect to exhibit ‘B’.
In a further argument, learned senior counsel insisted that the Respondents herein are strangers to exhibit ‘B’ and that the injunction which was granted to restrain INEC from giving effect to exhibit ‘B’, had put exhibit ‘B’ on hold and so exhibit ‘B’ was no longer enforceable. In aid the following authorities were cited: –
Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (pt.105) 494; Coker v. Sanyaolu (1979) 9-10 SC 203 at 223; Ikpeazu v. ACB (1965) NMLR 374: Obasanjo v. Buhari (2003) 17 NWLR (pt.850) 510.
Finally learned senior counsel submitted that the Federal High Court Kaduna was perfectly entitled to make the preservative order in exhibit ‘C’ in order not to render the appeal nugatory and that exhibit ‘C’ was so vital and crucial to the Appellant’s case and the Tribunal was in error in ignoring it. In conclusion learned senior counsel urged this Court to allow the appeal. In reply to the Appellant’s argument, Chief Udechukwu learned senior counsel for the 1st and 2nd Respondents submitted that the Tribunal was right when it inquired into the validity of exhibit “A”. Learned senior counsel urged the court to confine itself to a consideration of exhibit A, B and C for the purpose of resolving the lone issue formulated by the 1st and 2nd Respondents as it is to these exhibits that the law must be applied in order to gauge the correctness vel non of the decision of the Tribunal. In a further argument, learned senior counsel submitted that exhibit “A” does not qualify as an indictment within the con of S. 182 (1) (i) of the 1999 Constitution read in conjunction with Section 32 (4) (5) and (6) of the Electoral Act 2006 and Section 132 (1) of the Evidence Act as well as Section 2 of the Criminal Procedure Act.
Learned senior counsel then dwelt extensively on the definition of indictment and then concluded that exhibit “A” did not amount to an indictment and therefore is incompetent and its acceptance by the Federal Executive Council was an incompetent Act. Still in argument, learned counsel submitted that President Obasanjo who set up the Administrative Panel whose recommendations led to exhibit “A” which he accepted was an interested party and that the acceptance of the indictment by the Federal Government should not have been restricted to the Executive council alone, as the National Assembly is also part of the Federal Government. Learned senior counsel made reference to the historical antecedent of exhibit “A” and concluded that the said exhibit had been quashed by the judgment of the Federal High Court Kaduna, which was admitted as exhibit “B” at the Tribunal and there is no evidence that that judgment has been reversed.
Learned senior counsel cited several authorities and concluded by urging the Court to dismiss the appeal. Mr. Livy Uzoukwu, learned counsel for the 3rd -21st Respondents in his argument restricted himself to the fact that exhibit “A”, which was a product of an administrative panel which was set up by the Federal Government was quashed by exhibit “B” which is a judgment of the Federal High Court, Kaduna Division. The effect therefore is that exhibit “A” is null and void and of no effect. In a further argument, learned counsel submitted that the 1st Respondent did not need to be a party to the matter in which exhibit “B” was delivered in order to take the benefit accruing to the decision, since the said exhibit “B” is a judgment in rem. On exhibit “C”, learned counsel submitted that same is incapable of nullifying exhibit “B” which had declared exhibit “A” a nullity or rendering it void or stripping it of legal status or effect. According to the learned counsel, nullification is a state or condition of being void, without legal effect or status and such condition is incapable of being put on hold, as there is nothing to hold.
Finally, learned counsel urged this Court to dismiss the appeal.
At page 388 of the record of this appeal, part of the judgment of the tribunal in which the learned Chairman and Members of the Tribunal questioned the validity of exhibit ‘A’ is reproduced hereunder as follows’ –
“The Tribunal has read through exhibit ‘A’ and ‘B’ in evidence before it, (sic) is aware of the modus operandi of the Investigation Panel by which Exhibit ‘A’ was arrived at, and the dissatisfaction of the 1st Respondent which led to exhibit ‘B’. In view of what was held in the case
of ACTION CONGRESS & 1 OR Vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (Supra) we hold that exhibit ‘A’ cannot stand.”
In a further comment, the Tribunal held again as follows: –
“We wish to pause here and add that as the Tribunal is aware of the non compliance with the provisions of the constitution with regard to fair hearing in Section 36 (5) and (6), it will not be legally right for this Tribunal to ignore the Supreme Court judgment in the case of ACTION CONGRESS (AC) & ANOR VS. INEC where the Supreme Court justice (sic) advocated and urged Courts of law that are shouldered with the responsibility for laying offenders to always endeavour to comply with the aforesaid provisions of the constitution on fair hearing’ What is expected is that where such investigation panel by what ever name it is called, if called upon to conduct investigation, it ought to conduct its affairs in accordance with the relevant provisions of the constitution in relation to fair hearing.”
With these remarks, the Tribunal held that exhibit ‘A’ was effectively nullified by exhibit ‘B’ as a result, the 1st Respondent was not disqualified at the time of the questioned election’ The question as to whether the Administrative Panel whose report formed the basis of exhibit ‘A’, accorded fair hearing to the 1st Respondent, and whether the Federal Government improperly accepted the report of the Administrative Panel are not within the competence of the Tribunal. The issue before the Tribunal is whether the 1st Respondent was disqualified by virtue of the indictment contained in exhibit ‘A’.
One of the provisions of S.145 (1) of the Electoral Act, 2006 is that an election may be questioned on the ground that a person whose election is questioned was, at the time of the election’ not qualified to contest the election. S. 182 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, set out in detail the circumstances under which a person seeking for election to the office of the Governor of a State shall stand disqualified. For the purpose of this appeal, the relevant provision is set out at S. 182 (1) (i) of the Constitution as follows: –
“No person shall be qualified for election to the office of Governor of a State if he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government.”
It is common ground between parties that exhibit “A”, the White paper which indicted the 1st Respondent was set aside and quashed by the Federal High Court, Kaduna in its judgment which is exhibit “B” in the record of this appeal. What then is the effect of the judgment of the Federal High Court which set aside exhibit “A”.
In Alhaji Surakatu Amuda & Ors v. Taiye Oshoboja for Oshoboja family (1984) NSCC 531, the Supreme Court held that a judgment of a Court in any civil or criminal proceeding including all questions of law and fact decided by that Court is valid and effective until same is set aside by an appellate Court. See also Salaudeen v. Oladele (2003) 3 NWLR (Pt. 806) 29 at 44 paragraph F.
In that judgment, exhibit “B”, the Applicant Progressive Peoples Alliance, a political party sought for the following prayers: –
” 1 . An order of certiorari bringing into this court the proceedings of and the White Paper on the report of the Administrative Panel of Inquiry of alleged corrupt practices by some public officers and other persons No S.14/11/124 of 12th and 13th of February 2007 (attached herewith as Exhibit “A”) as it affects (i) ORJI UZOR KALU, PPA’S President Candidate (ii) T. A. Orji, PPA’s Government CANDIDATE ABIA STATE (iii) C. C ELECHI Esq. PPA Abia State House of Assembly Candidate, Abia State; for the purpose of being quashed for bias, abuse of legal process, denial of fair hearing and lack of jurisdiction.
2. Consequential Order – A declaration that the said candidates of PPA (i) Orji Uzor Kalu, PPA’s presidential candidate (ii) T. A. Orji, PPA’s Governorship candidate Abia State
(iii) C. C. Elechi, Esq P.P.A. Abia House of Assembly candidate, Abia State; are the bona fide respective candidates of the PPA as presented to Independent National Electoral Commission and are free from any indictment of THE WHITE PAPER ON AND THE REPORT OF THE ADMINISTRATIVE PANEL OF INQUIRY OF ALLEGED CORRUPT PRACTICES BY SOME PUBLIC OFFICERS AND OTHER PERSONS NO: CM 217/S.14/11/124 OF 13TH FEBRUARY 2007.
3. AND any other order or orders as the Honourable Court may deem fit to make in the circumstances.”
Liman J. who heard the application made the following order in the judgment which he delivered on the 19th of March 2007 as follows: –
“The cumulative effect of these vices renders the entire process a nullity. In the circumstances, the proceedings of Administrative Panel, its findings, its recommendation indicting –
i. Orji Uzor Kalu PPA’s Presidential candidate.
ii. T. A. Orji PPA’s Governorship candidate Abia State.
iii. C. C. Eledu Esq. PPA’s Abia House of Assembly candidate, and
iv. Barrister Obasi Agu PPA’s House of Assembly candidate. Abia State.
And the White Papers on them are hereby brought into this Court and are accordingly quashed and I also make a consequential order in the terms of relief No. 2.”
Clearly exhibit “A” was decisively dealt a blow by exhibit “B”. Any document that is set aside and quashed by an order of a competent Court, such a document in law no longer exist.
The question now is, was this judgment, exhibit “B” put on hold by the Federal High Court Kaduna in its ruling of 5th April 2007, which is exhibit “C” in the record of this appeal. Although a glance at the ruling’ one will have the impression that the Progressive Peoples Alliance, the party in favour of whom the judgment exhibit “B” was delivered is the applicant. I think the arrangement of the parties in the ruling is an error. The 1st – 4th Respondents brought an application to the Federal High court Kaduna to restrain INEC from given effect to the judgment of the Court wherein exhibit “A” was quashed. The application was heard and in a considered ruling Liman J. granted an injunction in which INEC was restrained from given effect to the judgment. The further question now is, whether the injunction granted against INEC has the effect of invalidating the judgment of the court. I do not think so. An injunction is not the same thing as ‘setting aside the judgment of a Court. An injunction is a Court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. It is a judicial process operating in personam and requiring a person to whom it is directed to do or refrain from doing a particular thing’ See Gainsburg vv. Dodge 193 Ark 473.
This process is a preventive and protective remedy, aimed at future acts and is not intended to redress past wrongs. Clearly the order of injunction was directed at INEC, which refused to obey the Court’s order, and instead conducted an election in which the 1st Respondent participated and went on to win. There is no evidence that the judgment of the Federal High Court, which is exhibit “B” was put on hold or set aside on appeal.
The white paper Exhibit “A” having been set aside and quashed by an order of a competent Court, there is nothing left upon which the 1st Respondent could be said to have been indicted. The Appellant forcefully argued that the 1st and 2nd Respondents cannot take the benefit of exhibit ‘B’, since they were not parties to the proceedings’ Even though the 1st Respondent was not a party to the proceedings in exhibit ‘B’, the order made therein specifically mentioned his name as one of the beneficiaries of the judgment, exhibit ‘B’. The said judgment has not been set aside on appeal.
The lower court was therefore right when it held that the 1st and 2nd Respondents are qualified to take benefit of the judgment aforesaid, the Lagos State High court in its ruling which was delivered on the 28th day of November 2006, set aside the report of the Administrative Panel of Inquiry on the EFCC Investigation Report dated 24th August 2006 together with any other recommendations, approvals based on it and now contained in the Federal Government Official Gazette dated 6th September 2006. Although the Appellant failed to give the exact date when the Administrative Panel was set up and when the Federal Government accepted the report, it is assumed that the report which he claimed indicted the 1st and 2nd Respondents is the same report that was set aside by the Lagos State High Court.
An order of Court remains an order of that Court and subsists until it is set aside on appeal. It does not matter whether the order is regular or irregular, valid or invalid, same must be obeyed’ Where a party forms an opinion that the order is not valid, the proper procedure to follow is to take steps to have the order set aside. See P. P. M. C. Ltd v. Delphi Pet. Inc (2005) 8 NWLR (Pt. 928) 458: Integrated Builders v. Domzag vent (Nig) Ltd (2005) 2 NWLR (pt.909) 97 and Oshiomhole v. F.G.N. (2005) 1 NWLR (907) 414.
Once a competent Court declares a piece of legislation or document null and void, such legislation or document cannot be operated against any person, even though such a person was not a party to the proceeding in which the declaration was made. Once a thing has been declared null and void, or when a decision has been set aside and quashed, in law such a thing no longer exist.
Blacks Law Dictionary 8th Edition defines ‘set aside’ as follows: – “to annul or vacate judgment or order”. The same Dictionary also defines Quash to mean, “to annul or make void; to terminate.” From the reasons I have given here, I am of the firm view that the Tribunal was right when it held that exhibit ‘A’ had been nullified by the Federal High Court Kaduna and that the 1st Respondent was not disqualified from contesting the Governorship election in Abia State. In the final analysis therefore I resolve the only issue in favour of the Respondents.
Having resolved the issue in favour of the Respondents, this appeal shall be and it is hereby dismissed.
The Appellant shall pay the sum of Thirty Thousand Naira (N30,000.00) to each set of Respondents.
S.A. IBIYEYE, OFR J.C.A.: I read in advance the judgment just delivered by my learned brother, Galinje, J.C.A. The two issues raised for the consideration of this appeal were meticulously dealt with in the lead judgment. I completely agree with the reasons and particularly the conclusion that appeal lacks merit. I accordingly dismiss the appeal and abide by consequential orders including costs.
CLARA BATA OGUNBIYI, J.C.A.: The subject matter of this appeal is a product emanating from the governorship elections held throughout the 36 States of the Federation on the 14th day of April, 2007.
The Independent National Electoral Commission (INEC). the 21st Respondent in this proceeding conducted the gubematorial election into the office of governor and Deputy Governor for Abia State. The Petitioner/Appellant herein was the candidate sponsored by the All Nigerian Peoples Party (ANPP) to contest the questioned election. The 1st and 2nd respondents also were candidates at the election for Governor and Deputy Governors respectively on the platform of Progressive Peoples Alliance (PPA).
At the conclusion of the election, the 1st and 2nd Respondents were declared duly elected and returned as such by the official of the 21st respondent on a majority vote of 265, 389, while the Petitioner/Appellant was said to have scored 35, 744 votes.
Agitated and feeling very unhappy with the outcome of the election, the appellant filed a petition on the 9th of May, 2007 wherein he questioned the declaration by the 3rd – 21st respondents of the 1st and 2nd respondents as the winners of the election held on the 14th day of April 2007 into the office of the Governor of Abia State. From the 18 paragraphs petition challenging the declaration and return of the 1st respondent’ paragraph 8 stipulates the ground upon which the petition was brought and it states as follows:-
“8. The Petitioner brings this petition on the following grounds:-
(i) that the 1st Respondent, whose election is hereby questioned was at the time of the election not qualified to contest the said election and not eligible to hold the office of or to be elected as Governor of Abia State.”
In substantiation and support of the ground of his petition at the lower tribunal were paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and 17 wherein the petition was ended with the following prayer al paragraph 18 as follows:-
“18. Wherefore the Petitioner prays as follows:
(i) That this tribunal do determine that the 1st Respondent was not qualified or was disqualified from contesting the questioned election, that his election be nullified and that the petitioner ought to have been declared the winner having won majority of lawful votes cast at the election.”
The said paragraph 9, 10, 11, 12, 14 and 15 of the petition extensively highlights the main issue before the Tribunal, relating to the alleged indictment of the 1st respondent. It was therefore an agreed fact by both the tribunal below as well as all the parties to the petition that the only issue calling for determination in the petition was whether the Petitioner/Appellant had proved the 1st Respondent was disqualified from contesting the Questioned election having regard to the provisions of Section 182(1)(i) of the 1999 Constitution.
In delivering its judgment against the petition, at pages 379 – 390 of the record and in particular at pages 389 the lower Tribunal held and said:-
“It is in view of the foregoing that we hold that the 1st Respondent was at the time of the questioned election not disqualified to contest the said election. The Petitioner has failed to prove otherwise. In the circumstances’, we hold that this petition ought to be dismissed for lacking in merit and it is hereby dismissed.”
It is against the findings by the Tribunal below that the petitioner/appellant, (henceforth to be called appellant), has now appealed to this court vide a notice of appeal dated 22nd and filed on the 23rd October, 2007 and wherein three grounds of appeal were raised.
In accordance with the provisions of the Electoral Act 2006, briefs were duly exchanged between the parties’ While the appellants’ brief was dated the 20th and filed on the 22nd November, 2007, that of the 1st and 2nd respondents is dated 28th November and filed 3rd December, 2007. The 3rd-21st respondents however filed an amended brief dated 14th but deemed filed and served on the 21st January, 2008. There is also a reply brief filed by the appellant dated 8th and filed on the 11th January, 2008.
On the 21st January, 2008 when the appeal was called up for hearing, all counsel adopted their respective briefs. While Mr. O. A. Obianu SAN for the appellant urged us to allow the appeal, the learned Messrs U.N.Udechukwu (SAN) and Livy Osonkwo (SAN) on behalf of the 2nd and 3rd – 21st respondents respectively urged that the appeal be dismissed and the judgment of the tribunal be affirmed.
From the three grounds of appeal filed, the appellant distilled two issues for the determination of this appeal, as follows:-
“i. Was the tribunal correct in its conclusion that the 1st respondent was at the time of the election into the office of Governor of Abia State on 14th April, 2007, qualified to contest the said election.
ii. Did the tribunal breach the Petitioner/Appellant’s right to a fair hearing by failing to consider a fundamental ground on which his case was based.”
The 1st and 2nd also 3rd-21st respondents all raised one basic issue in consonance and synonymous to the appellants first issue. Reproduction of same would only be repetitive.
The central contention of the 1st issue is whether or not the 1st respondent was qualified or illegible to contest the said election, the subject of petition by the appellant at the lower Tribunal?
Succinctly put and from the deductive summary of the appellant’s submission, the bone of argument centred forcefully on the indictment of the 1st respondent consequent to the government white paper disqualification on account of fraud and embezzlement. Learned counsel laid stronghold on of Sections 145(1) and 182(1)(1) of the Electoral Act, 2006 and 1999 Constitution of the Federal Republic of Nigeria, respectively.
Counsel re-iterated that the nullification of exhibit A by the tribunal was very wrongful. He therefore urged this court to give effect to the principle of Constitutional Interpretation where words used in an enactment or instrument is clear and unambiguous. In grounding the submission, references were made to the cases of Chief Chukwuemeka Ojukwu v Chief Olusegun Obsanjo and 3 ors. (2006) 2 EPR 242; Attorney General Bendel State v Attorney General of the Federation (1981) SC 1; Horizon Fibres (Nig.) Plc v M. V. Baco Liner & 3 Ors. (2002) 8 NWLR (Pt.7690) at 488-489; Dr. Patrick Nwangwu and Anor. V Barrister John Duru (2002) NWLR (Pt.751) 265 at 281. and Ahmadu v Governor of Kogi State (2002) 3 NWLR (Pt.755) 502.
The learned counsel further and with reference to the case of Okotie-Eboh v Manager (2004) 18 NWLR (Pt.905) 242 at 28 argued that the apex court gave its stamp of authority to the disqualifying effect of a provision similar to Section 182(1)(1) of the Constitution. He garnered that to suggest that the disqualification under the said had to be first established in court and a conviction secured is clearly legally unsuitable and amounting to duplicating the provisions of Section 182(i)(e) of the said constitution.
That the provision of Section 182(1)(1) is specific and which derogates from the general provision in Section 182(1)(e). Learned Senior to buttress his submission cited the authorities in the case of Umana v Affah (2004) 7 NWLR (Pt.871) 63 at 109-110; also Dagash v Bulama (2004) 14 NWLR (Pt.892) 144 at 19 the decisions of this court. That this court should follow the case of Okotie Eboh v James Manager (supra) where the Supreme Court interpreted a similar provision as capable of disqualifying a candidate once the indictment is by a body mentioned in the section.
Learned senior in the light of the circumstance urged the court to apply Okotie Eboh v James Manager (supra) and also its own decisions referred to, which are tandem with the intention of the law makers as deducible from the clear words of the constitutional provision. The senior therefore urged us to hold that Exhibit A was capable of disqualifying the 1st respondent and that the tribunal erred in its conclusion and reliance on the Action Congress case (supra), which was inapplicable and against the weight of decided authorities on the subject.
On the 2nd issue raised, the learned silk submitted the failure of the tribunal to have considered the effect of Exhibit C on which the appellant hinged his case and the fact that the 1st respondent was not a party to the case Exhibit B. That neither the 1st nor 2nd respondents was a party to the case. The senior cited the provision of section 54 of the Evidence Act wherein every judgment is conclusive proof as against parties and their privies. The case of Fawehinmi v N. B. A. (No.1) (1989) 2 NWLR (Pt. 105) 494 were relied upon in providing an answer to, “who is a party to a suit.”
That, by not being a party to the case, subject matter of Exhibit B and having not pleaded and brought himself within the definition of any of the categories of privies recognized in law, the 1st respondent cannot take the benefit under exhibit B. That it is akin to the principle of law that a stranger to a contract cannot sue for its enforcement even if it was made for his benefit. In support is Ikpeazu v ACB (1965) NMLR 374. Negbenebor v Negbenebor (1971) 1 All NLR 210. also relied upon was Obasanjo v Buhari (2003) 17 NWLR (Pt.850) 510 where relationship between a political party and its members was explained.
That by the decision of the Supreme Court in Dike v Nzeka (1986) 4 NWLR (Pt.34) 14 at 157, a judgment in rem can only arise from the exercise of the court’s jurisdiction in probate Insolvency, Admiralty or matrimonial matter as enshrined in section 50 of the Evidence Act. Further reference was also made to Law and Practice relating to Evidence in Nigeria by T. Akinola Aguda page 148 paragraph 8.8.
In further submission learned counsel argued that, should this court hold that the 1st Respondent can take benefit of Exhibit B when he filed no suit to set aside his indictment, then he would still be confronted by Exhibit C, which senior counsel argued arose from an application filed by the defendants in the suit including the 21st respondent herein, for an order restraining the 21st Respondent from giving effect to the judgment of the court. That the basis of the application being that the res would be disobeyed if the status quo were not maintained. That it was perfectly within the jurisdictional scope of the trial judge to make the order which was preservative in nature. That by the tribunal failing to consider the effect of exhibit C the appellant’s right to a fair hearing was breached. Cited in support was the case of Okonji v Njokanma (1991) 7 NWLR (Pt.202) 31 at 150, 155 and 157. That exhibit C was so vital and crucial to the appellant’s case and that the tribunal was in error in ignoring it.
The learned senior counsel enjoined this court to uphold legality and reject the culture of impunity and disrespect for court order. That the 1st respondent should have either applied to the same court to set aside Exhibit C or appealed against the order with an application for stay of execution.
That the position still remained that the 1st respondent stood indicted and was unqualified because Exhibit C put Exhibit B on hold so that Exhibit A could operate.
In conclusion, the learned silk finally submitted that the tribunal below was wrong in holding that exhibit A did not disqualify the 1st Respondent from contesting the questioned election and that Exhibit C effectively suspended the operation of the judgment Exhibit B; and that the tribunal erred in not considering Exhibit C. counsel urged this court to invoke section 15 of the Court of Appeal Act 2004 and grant the relief sought by the appellant at the tribunal.
On behalf of the 1st and 2nd respondents their counsel learned senior Udechukwu for the determination of the only issue formulated urged the court to confine itself to a consideration of Exhibits A, B and C. That it is these exhibits that the law must be applied in order to gauge the correctness vel non of the decision of the Tribunal below. That on the face of Exhibit A, it did not qualify as an indictment within the con of section 182( 1(i) of the 1999 constitution read in conjunction with section 6 (1)(6), section 36(1)(4)(5)(6) – (12) of the 1999 constitution, section 32(4)(5) and (6) of the Electoral Act 2006, section 132(1) of the Evidence Act as well as section 2 of the Criminal Procedure Act. That with the allegation of criminal nature, particulars of fraud or embezzlement must be stated or else there cannot be said to be an indictment for fraud and embezzlement at law. Learned senior related in detail the essential ingredients of section 182(1)(i) of the 1999 Constitution, which he argued have not been satisfied.
Learned senior further reiterated the definition of “indictment” as defined under section 2 of the Criminal Procedure Act. Reference was again made to exhibit A wherein the senior argued that the 1st respondent was never indicted formally in any charge by any Administrative Tribunal of inquiry or even before a panel of inquiry. That EFCC is not an Administrative Tribunal or Panel of Inquiry and cannot indict anybody for purposes of section 182(1)(i) of the 1999 Constitution. Reference was made to Okotie Eboh v Chief J. E. Manager and Action Congress (AC) & Anor. V Independent National Electoral Commission (INEC) supra.
That the purported indictment raises a fundamental question of breach of section 36(1)(4)(5) and (5) (a) of the Constitution. That the 1st respondent did not ‘appear before the Administrative panel which issued the report exhibit A since the report did not show that he was ever invited and hence a non-compliance with section 36(1)(4)(5)(b) of the 1999 Constitution.
That a court of competent jurisdiction had in Exhibit B quashed Exhibit A for this very reason on the question of fair hearing, learned senior cited the authority in the case of Shofeku v Akinyemi (1981) 1 NCLR 135 which was applied by the apex court in Action Congress (AC) & Anor. V Independent National Electoral Commission (INEC) supra. That Exhibit A, prima facie, does not contain essential ingredients of validity so as to make it an indictment under section 182(1)(i) of the Constitution. That the purported Administrative panel of Inquiry, apart from not being “established by law”, it is not “constituted in such a manner as to secure its independence and impartiality.” That Obasanjo as President and Chief Executive had personal interest in the “malter – nemo judex in causa sua” cited in support was the case of Garba v University of Maiduguri (1986) 1 NWLR (Pt.18) 550.
That the indictment ought to be accepted by the Federal or State Government and does not mean the Executive alone but that it includes the National Assembly.
On exhibit B the judgment of the Federal High Court, learned senior argued same was procured for the benefit of the 1st respondent by his political party which sponsored him for the questioned election for the purpose of qualifying him to contest the election.
Learned senior cited section 287(3) of the 1999 Constitution to high light and restate the effect of the judgment exhibit B; That there is no appeal against same. That the judgment Exhibit B is in consonance with the decision in the case of Action Congress (AC) & Anor. v INEC supra.
That the tribunal in the circumstance could not therefore have ignored exhibit B which was a judgment in rem and not in personam.
On the effect of Exhibit C, learned senior argued’ did not purport to set aside the judgment exhibit B. That as far as 1st respondent is concerned Exhibit C cannot concern him since it made no order requiring obedience on his part. That there is no consequential order made which is capable of enforcement by INEC. That Exhibit B did not order INEC to do anything which INEC could have been restrained from doing. It made no consequential order capable of enforcement by INEC, the enforcement of which INEC could have by injunction been restrained from enforcing. That both the Federal High Court and the tribunal were not competent to set aside exhibit B. That exhibit C at best must have been an order for stay of execution pending appeal, clumsily and incompetently prayed for. That as long as Exhibit B remains a subsisting court decision, Exhibit A remains quashed. Learned senior urged this court to therefore decide that the Tribunal could not have acted to enforce Exhibit A against the 1st and 2nd respondents in view of Exhibit B. That the petitioner having regard to section 147(1) and (2) of the Electoral Act 2006, cannot in any event be entitled to the relief endorsed in paragraph 18(1) of his petition or any other favourable relief. That the tribunal below was therefore right when it decided that 1st Respondent was at the time of the questioned election not disqualified to contest the said election and that the petitioner/appellant had failed to prove otherwise.
Uzoukwu (SAN) on behalf of the 3rd -21st respondents and for purpose avoiding repetition aligned himself to the lone issue formulated as well as the arguments in support and advanced by the 1st and 2nd respondent’s counsel. In the same vein the learned senior corroboratively discontinuance the appellants contention as lacking in merit and forcefully argued that Exhibit A remains a nullity unless reviewed by the Court of Appeal upon the determination of the appeal said to have been filed challenging Exhibit B. That the 21st respondent acted rightly by not disqualifying any of the candidates for the election. That the petition was deformed and dead as its substratum had been judicially annulled and made void.
Learned senior counsel therefore urged us to dismiss the petition in its entirety.
Mr. O. A. Obianwu, the learned appellants senior counsel further in their reply brief argued that the tribunal did not hold that Exhibit A did not qualify as an indictment, rather that the grounds for the decision are clearly set out at pages 388 – 389 of the records and that none of them is to the fact that Exhibit A does not qualify as an indictment under the various enactments now relied upon by the 1st set of respondents’ reference was made to order 9 rule 20 of the Rules of this court 2007 on the question of respondents notice, which counsel argued was not filed by the 1st set of respondents and, which was in breach of the relevant statutory provisions which are meant to be obeyed and thereby rendering those grounds as incompetent. A number of authorities were cited to buttress the submission.
That the 1st and 2nd respondents cannot blow hot and cold at the same time.
In response to the 1st and 2nd respondents contention on the case of Okotieh-Eboh v Manager (supra) and the applicability of sections 137(1) and 182(1) of 1999 Constitution, learned appellant’s senior counsel said the argument had no merit. That section 66(i)(h) of the constitution interpreted in Okotie Eboh’s case is in pari materia with section 137(1)(i) of the Constitution considered in the Action Congress’s case. That since the apex court did not deal with section 182(1) in the Action Congress case, the respondents cannot therefore take benefit of same.
Further more that the issue before the tribunal which they unfortunately did not do, was the interpretation of Exhibit C with a view to ascertaining its effect on Exhibit B and not to sit on appeal over the judgment Exhibit B. That exhibit B, contrary to the submission by the 1st and 2nd respondents could only bind parties to the case. That exhibit C was neither a “Judicial monstrosity”, “otiose” an “order made in vain.” Judicial fanx pas” “Brutum Fulmen” made “without jurisdiction” or “manifest legal absurd ties.” That the course open to the 3rd – 21st respondents was to have gone back to the court which made the order Exhibit C to persuade it to vacate same. That the issue was not whether the preservative order had the effect of staying suspending or nullifying the operation of the judgment Exhibit B That the judgment of the Supreme Court relied upon by the Respondents is no authority for treating a subsisting court order as if it did not exist. Learned senior counsel relied on the result of the election in paragraph 17 of the petition wherein scores ascribed to each candidate was agreed upon. That by mathematical calculation, the appellant had the highest number of valid votes cast in the election and thereby satisfying the requirements of section 179 of the Constitution thereof.
In the result the learned senior prayed this court to therefore uphold and allow the appeal as Prayed
On the totality of the case before us and considering the briefs and issues formulated by all parties and in the light of the Exhibits A, B and C, it is obvious that there is only one main issue in this appeal wherein all other ancillaries are encompassed therein. Succinctly put, the issue is whether the Respondent was on the 14th April, 2007 qualified to contest the election having regard to the provision of section 182(1) of the Constitution of the Federal Republic of Nigeria 1999 and section 145(1)(a) of the Electoral Act 2006.
The ground upon which the petitioner brought the petition is as follows:-
“8. The Petitioner brings this petition on the following grounds:-
(i) that the 1st Respondent, whose election is hereby questioned was at the time of the election not
qualified to contest the said election and not eligible to hold the office of or to be elected as Governor of Abia State.”
At page 388 of the record of appeal, the lower tribunal held this view and said:-
“In view of what was held in the case of Action Congress and 1 Ord. V Independent National Electoral Commission (supra) we hold that Exhibit “A” cannot stand.”
The crucial issue as rightly submitted by counsel is:-
“Whether the Tribunal below was right when it decided that the 1st respondent was at the time of the questioned election not disqualified to contest the said election and that the petitioner/appellant had failed to prove otherwise.”
On the one hand while the appellant’s learned senior counsel submitted the tribunal’s conclusion as wrongful, both the respondent senior counsel on the other hand argued firmly in support thereof.
Sections 182(1)(i) of the 1999 Constitution and 145(i) of the Electoral Act, 2006 provide as follows:-
“182(1)(i)
No person shall be qualified for election to the office of Governor of a State if –
He has been indicted for embezzlement or fraud by a judicial commission of Inquiry or an Administrative panel of inquiry or a tribunal set up under the tribunals of Inquiry Act, a tribunals of Inquiry Law or any other law by the Federal or State government which indictment has been accepted by the Federal or State Government.
145(i) an election may be questioned on any of the following grounds:-
i. That a person whose election is questioned was at the time of the election not qualified to contest the said election.”
The determination of the issue is critically and squarely raising a constitutional question bordering upon the interpretation of the documents exhibits A, B and C.
It is to be borne in mind that the Electoral Act, 2006 being a subsidiary legislation, same therefore ought to operate side b1, side with the 1999 constitution. Consequently, both would have to be read together for purpose of giving effect and meaning to the rights and obligations of individuals.
It is trite and settled principle of interpretation that a provision of the constitution or a statute should not be interpreted in isolation but within the central con of the constitution or statute as a whole. In other words, while construing the provisions of a section of a statute, the whole of the statute must be read for the purpose of the apt determination of the appropriate intended meaning and effect of the exact words needing interpretation. See the case of Buhari and Anor. Vs. Obasanjo and Ors. (2005) 13 NWLR (Pt.941) 1 (219). Where however, the words of a statute are plain and unambiguous, same would not require an interpretation but should rather be given its natural and ordinary meaning.
For a person to qualify as illegible candidate he must not be disqualified by any of the reasons under section 182(1)(i) of the constitution as reproduced supra. It is not a matter of contention that Exhibit A is a government white paper which same had been set aside by the Federal High Court.
The significant feature of this appeal is the setting aside of exhibit A by exhibit B and consequent to a further order exhibit C. what therefore is the effect of exhibits c on B as it affects A.
In the situation at hand, whether or not the 1st respondent comes under section 182(1) of the Constitution is dependent upon the interpretation A, B and C thereof. Explicitly put, Exhibit A is the government white paper wherein 1st Respondent was indicated. Exhibit B is the judgment of the Federal High court setting aside exhibit A. These are questions of fact and not in dispute. This I say because the 1st respondent in the absence of any appeal or complaint levied against Exhibit A was deemed to have consented to the outcome of the paper. The 1st and 2nd respondents heavily relied on the case of Action Congress (AC) & Anor. vs. Independent National Electoral commission (INEC) (2007) 12 NWLR (pt.1048) 222 at 259 and 260. Also Okotie-Eboh v Chief J. E. Manager (2004) 18 NWLR (pt.905) 242 at 287. With the greatest respect to the learned senior counsel, the said authorities are not on all fours with the case under consideration but are at variance. In other words, while in the cases under reference, suits were filed by the appellants against INEC in the Federal High court challenging their powers under the constitution 1999 and the Electoral Act 2006, for the actions they took, the same cannot be said in the case at hand. The 1st respondent of hand did not challenge either the white paper or the procedure adopted in arriving at exhibit A. The decision in those cases cannot therefore have any relevance to the said respondent’s case. Exhibit A is the government white paper on the report of the Administrative panel of Inquiry on alleged corrupt practices by some public officers and other persons issued in February and printed by the Federal Government Printer Lagos. I am mindful however that at paragraph 9(1) of the 1st and 2nd respondents reply to appellants petition they averred and said:-
“9(i) Paragraph 9 of the petition is false. It is denied. The 1st Respondent was never lawfully indicted as pleaded by the petitioner. It is not true that the Federal Government had accepted the fact of the indictment of the 1st respondent as pleaded by the petitioner. The white paper pleaded by the petitioner has been set aside by a competent Court of Law.”
The word “Indictment” is defined under section 2 of the Criminal Procedure Act as:-
“the filing of an information against a person who is committed for trial to the High Court after preliminary inquiry by Magistrate.” Whether or not the 1st respondent comes under section 182(1)(i) of the Constitution is dependent upon the interpretation of Exhibits A, B and C thereof. As earlier stated, Exhibit A is the white paper indicting the 1st respondent while Exhibit B is the judgment of the Federal High Court setting aside Exhibit A. These are questions of fact and cannot be in dispute.
The bone of contention however is the effect of Exhibit C, the injunctive order especially in the absence of the 1st respondent not being a party to the case Exhibit B. While the appellant contends that Exhibit C suspends Exhibit B, the respondents hold the contrary. I would also hasten to say that the failure of the 1st respondent in complaining against exhibit A, would in no way affect the outcome of the decision in exhibit B which by order of certiorari quashed exhibit A, the white paper which now is none existent nor did ii ever exist.
The next point is the effect of exhibit C which operated to set aside Exhibit B, wherein an injunctive order was made “restraining the Independent National Electoral Commission from giving effect to the judgment.” From the foregoing, it is clear that the order purporting to restrain INEC from giving effect to the judgment against itself in the absence of same given without jurisdiction could not have operated to set aside exhibit B. Any attempt for such move would have been without jurisdiction since “the court had become functus officio. Relevant in support is the decision of their Lordships of the apex court in the case of Adigun & Ors. v the Attorney General of Oyo State & Ors. (1987) 2 NWLR (Pt.56) 197. Exhibit B was a decision of the court embodied in some judgment or order that had been made effective, the said court could not in any way reopen the matter and substitute a different decision in this case exhibit C as contended by the learned senior counsel for the appellant. Any move to alter such a decision as exhibit B ought to only be by way of an appeal invoking appellate jurisdiction. Powers of appeal does not lie with the pronouncing trial court or any court of co-ordinate jurisdiction. It must lie with the appellate court. Exhibit B cannot therefore be set aside by the same Federal High Court or by the tribunal which also lacks the requisite jurisdiction.
Authorities in support are:-
Martins vs. Nicannar (1988) 2 NWLR (Pt.74) 75; Nwabueze vs Okoye (1988) 4 NWLR (Pt.91) 664; and Abacha vs Fawehinmi (2000) 6 NWLR (Pt.660) 228 at 317 where their Lordships of the apex court in summary restated and said:-
“It is the law that a decision of a court of competent jurisdiction, no matter that it seems palpably, null and void, unattractive or in supportable, remains good law and uncompromisingly binding until set aside by a superior court of competent jurisdiction: see Babatunde and Anor. V Olatunji and Anor. (2000) 2 NWLR (Pt.646) 557 and Ezeokafor v Ezeilo (1999) 9 NWLR (Pt.619) 369.”
Exhibit C as rightly submitted by the 1st and 2nd respondents senior counsel could at best serve as an order for stay of execution pending appeal.It is also trite law that neither an order of stay of execution pending appeal nor an order of injunction to preserve the res pending appeal can have the effect of nullifying the judgment appealed against. Exhibit C short of an appeal can in no way operate to suspend exhibit B which had done away with exhibit A.
From all deductions of the determination of this appeal I am in full agreement with the decision arrived at by my learned brother Galinje JCA in the lead judgment that this appeal is devoid of merit and same ought and is accordingly dismissed. I also align myself with all orders made therein the said lead judgment inclusive of costs.
OLUKAYODE ARIWOOLA, J.C.A.: I have been privileged to read in draft the lead judgment prepared by my learned brother, Galinje, JCA. I agree with his reasoning end conclusion that the appeal lacks merit and is liable to dismissal. Accordingly I too dismiss this appeal and I abide by the consequential orders made in the lead judgment, including order on costs.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have had the honour to read in advance the judgment of my learned brother, GALINJE, JCA just delivered with which I entirely agree but by may of emphasis let me and the following’ The only ground on which the petition was based is:
“That the 1st Respondent’ whose election is hereby questioned was at the time of the election not
qualified to contest the said election and not eligible to hold the office or to be elected as Governor of Abia State.”
On a perusal of the proceedings it is certain and agreed by parties that the basis of his petition are documents tendered as Exhibits ‘A’ ‘B’ and ‘C’ which are adequately set out in the lead judgment. I therefore need not quote.
At page 358 of the Record of this appeal, part of the judgment of the Tribunal in which the tribunal questioned the validity of Exhibit ‘A’ reads I quote:
“The tribunal has read though Exhibit ‘A’ and ‘B’ is evident before it (sic) is aware of the modus oprandi of the investigative Panel by which Exhibit ‘A’ was arrived at and the dissatisfaction of the 1st Respondent which led to Exhibit B in-view of what was held is the same Action Congress & 1 Ors v. INEC supra, we hold that Exhibit ‘A’ can not stand.
The Tribunal therefore held that Exhibit ‘A’ was effectively nullified by Exhibit ‘C’.” Let me at this stage quote part of Exhibit ‘A’ in which the appellant anchored his case it reads in part:
“Panel Findings:
The Panel concluded on this report by finding T.A.
Orji to be corrupt and fraudulent and stands indicted (Underline mine) which was accepted by the Federal Government.”
The word indict appears under Section 182 (i) (ii) of the Constitution of the Federal Republic of Nigeria where it is provided as follows: –
182 (i) No person shall be qualified for election to the office of Governor of a State if a……………………………………
i. he has been ‘indicted’ for embezzlement for fraud by a Judicial Commission Inquiry or a Tribunal set up under Tribunal’s of inquiry Act or Tribunal of inquiry Law or any other Law by the federal or state Government which indictment been accepted by the Federal or State Government.”
‘Indict’ in Collins Dictionary and Thesaurus means “To charge (a person) formally with a crime especially in writing” charge, accuse’ prosecute’ summon, impeach arraign. “Indictment” CHARGE’ allegation, prosecution, accusation arraignment e.t.c
Black’s Law Dictionary, Seventh Edition ‘indict’ means “To charge (a person) with a crime by formal legal process.”
Not withstanding the fact that the 1st respondent is not a party (prima facie).to Exhibit B. There is nothing stopping him from taking advantage of the outcome. In fact his political party is the Plaintiff. Exhibit A was nullified by Exhibit B. The appellant puts emphasis on Exhibit C. The argument of the appellant that exhibit C puts exhibit B on hold’ Exhibit C is to the effect that INEC was restrained from giving effect to the judgment Exhibit B.
The question is whether the injunction granted against INEC has the effect of invalidating the judgment of the Court in Exhibit B.
An injunction is a Court Order prohibiting someone from doing some specific act or commanding some one to undo some wrong or injury. It is a judicial process operating in persona and requires a person to whom it is directed to do or refrain from doing a particular thing’ See GAIUS BURG V DODGE 193 ARK 473.
There is no evidence that the judgment contained in Exhibit B was put on hold or set aside. Exhibit C can not be held to be an appeal setting aside EXHIBIT B.
What is an appeal? Simply put an appeal is the judicial examination by a higher court of the decision of an inferior court. It is a resort to a superior court to review the decision of an inferior court and find out whether facts placed before it, and applying the relevant and applicable law, the inferior court came to a right decision’ See Lord Davey in Ponnamma V. Arunogan (1905) AC 390 per Oputa, JSC in A.G. Oyo State & Anor v. Fairlakes Hotel Ltd SC 1988. Exhibit “C” can not be classified as above, therefore it is of no moment and has no effect whatever on Exhibit B which has not been set aside. In the final analysis and for the fuller reasons given in the lead judgment which I also adopt as mine, I also resolve the only issue in favour of Respondents. I also dismiss the appeal and I award N30.000.00 (Thirty Thousand Naira) to each set of Respondents.
Appearances
Chief O. A. Obianwu, SAN for the Appellant with him are J. O. Dada and E. A. OparaFor Appellant
AND
Chief U. N. Nctechukwu, SAN for the 1st and 2nd Respondents with him are Awa Kalu, SAN, Chief Ifeanyi I. Iboko Esq., N.A.
Nwawuchi, Esq. and U. O. Ebogwu
Mr. Livy Ozoukwu, SAN for the 3rd – 21st Respondents with him is C.K. Uba, Esq.For Respondent
