KANTIOK IRMIYA ISHAKU & ANOR v. BARRISTER EMMANUEL BAKO KANTIOK & ORS
(2011)LCN/4714(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/K/EP/SHA/01/09
RATIO
CAPACITY TO SUE: WHETHER IT IS ONLY A MEMBER OF THE SAME POLITICAL PARTY THAT HAS A RIGHT OF ACTION FOR BEING WRONGLY OR UNLAWFULLY SUBSTITUTED OR CHANGED
In Zaranda vs. Tilde (supra), it was held that only a member of the same Political Party has a right of action for being wrongly or unlawfully substituted or changed. It is not a global or community right and it needs to be restricted as a purely domestic affair between members of the same Political Party and the Independent National Electoral Commission to sort in a Court of law. It was further held therein that the 1st Respondent therein lacked the locus standi to question whether or not the substitution or change of a candidate by the Political Party of his opponent at an election was proper or not proper. It was further demonstrated in Kolawole vs. Folusho (supra) that it is only an aggrieved member of a Political Party who can challenge the validity or otherwise of a fellow member’s nomination. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
ELECTION AS A MEMBER OF A HOUSE OF ASSEMBLY: STATUTORY PROVISION ON THE REQUIREMENTS FOR A PERSON TO BE QUALIFIED FOR ELECTION AS A MEMBER OF A HOUSE OF ASSEMBLY
…recourse should be had to section 106(d) of the Constitution of the Federal Republic of Nigeria which says that for a person to be qualified for election as a member of a House of Assembly, he; (a) must be a citizen of Nigeria; (b) has attained the age of thirty years; (c) has been educated up to at least the School Certificate level or its equivalent; and (d) is a member of a Political Party and is sponsored by that party. Then, section 107 to which section 106 is subject, outlines the situation in which a person shall not be qualified for election to a House of Assembly. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
BASIS OF ELECTION PETITION: STATUTORY PROVISION ON THE GROUNDS UPON WHICH AN ELECTION MAY BE QUESTIONED
Section 145(1)(a) of the Electoral Act, stipulated the grounds upon which, an election may be questioned, which includes thus: “145(1)(a) that a person whose election is questioned was at the time of the election not qualified to contest the election”. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
ELECTION PETITIONS: STATUTORY PROVISION ON THE PERSONS ENTITLED TO PRESENT AN ELECTION PETITION
Section 144(1) clearly stated the persons entitled to question the election of the other party or present an election petition. It provides; “An election petition may be presented by one or more of the following persons: (a) a candidate in an election (b) a political party which participated in the election”. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
FAIR HEARING: EFFECT OF THE PROCEEDINGS CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING
It is well established that a Court or Tribunal should not be seen to have barred a party from conducting his case as he wants or filing his defence in the case. It is trite that where a party’s right to fair hearing is breached, the entire proceedings are a nullity and it will be irrelevant that the decision arrived at by the Court or Tribunal is correct or not. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
STAY OF PROCEEDINGS: CIRCUMSTANCES WHERE STAY OF PROCEEDINGS MAY BE GRANTED
In Usani vs. Duke (2004) 7 NWLR Part 871 p. 116, it was stated that ordinarily the Court does not readily grant an order staying proceedings because of the determined effort of the Court to determine all matters expeditiously, but, when a matter raises special or peculiar problems or circumstances, stay of proceedings may be granted, and that whilst delay of justice is regarded as a denial of justice, hasty justice is equally harmful. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. KANTIOK IRMIYA ISHAKU
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. BARRISTER EMMANUEL BAKO KANTIOK
2. ACTION CONGRESS (AC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RETURNING OFFICER, ZONKWA STATE CONSTITUENCY Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The elections to the Kaduna State House of Assembly for the Zonkwa State Constituency of Kaduna State of Federal Republic of Nigeria held on the 14th day of April, 2007, took a dramatic turn when after the results had been announced, and, the 1st Appellant declared the winner of the said election, the 1st Respondent, who was a member of the 2nd Respondent, and the 2nd Respondent’s candidate in the said election, together with the 2nd Respondent, who were not even members of the 2nd Appellant, filed an Election Petition on the 10th May, 2007, challenging the election of the 1st Appellant on the ground that he was disqualified to have participated at the election, thereby and seeking inter-alia, the following reliefs:
“1. The 1st Respondent was at the time of the election, not qualified to contest the election BECAUSE he was not a member of the 2nd Respondent and was not sponsored by the 2nd Respondent in the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007 .
ii. The 1st Respondent was at the time of the election not qualified to contest the election because the Federal High Court Kaduna in suit No. FHC/KD/CS/45/2007 set aside his substitution as the candidate of the 2nd Respondent for the Election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007.
iii. The electors who voted on the 14th day of April, 2007 in the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, knew that the 1st Respondent was not qualified to contest the election, before casting their votes at the election; and
iv. The 43,102 votes scored by the 1st Respondent are regarded as not given at all, they were thrown away being null and void.”
Additionally, the 1st an d 2nd Respondents prayed the trial Tribunal to:
“(i) declare the 1st Petitioner as the elected member of the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, having polled the highest number of the lawful votes cast at the election held on the 14th day of April, 2007 and having satisfied the requirements of the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act 2006; or
ALTERNATIVELY-
(ii) nullify the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007, and make an order for a fresh election.
Reacting to the said Election Petition, the 1st and 2nd Appellants belatedly filed their Reply on the 7th June, 2007. Despite their Motion on Notice for extension of time filed by the 1st and 2nd Appellants on 19/6/2007, with a seeming intention to regularize their positions in the election proceedings, the trial Tribunal allegedly shut them out and refused to grant their requests. The trial Tribunal proceeded to trial with the 1st and 2nd Respondents presenting about three witnesses to prove their allegations and claims.
After their deliberations, and, evaluation of evidence, it was articulated at pages 417 – 419 thus:
“With respect, the issue before this Tribunal, in the instant case, is not whether or not the 1st Respondent was properly substituted for a previously nominated candidate of the 2nd Respondent within the provisions of Section 34 of the Electoral Act, 2006. That issue had, as earlier stated long been settled on the 29th day of March, 2007 before the election of 14th April, 2007 by the Federal High Court, Kaduna in suit No. FHC/KD/CS/45/2007; i.e. Exhibit B -B2.
The issue before us is whether in the face of Exhibit B – B2 barring the 2nd Respondent from presenting the 1st Respondent as its candidate for the Zonkwa State Constituency in the April 14, 2007 Kaduna State House of Assembly election, the 1st Respondent could nevertheless contest the said election as such.
We are not aware of any authority including the Court of Appeal decision in Zaranda vs. Tilde (supra) cited and heavily relied upon by the 1st and 2nd Respondents that would support such a position.
We therefore agree with the view that a judgment of a Court of competent jurisdiction is presumed valid and subsisting and the parties concerned are not only bound to obey it, but the authorities charged with the responsibilities for enforcement of judgment are also obliged to enforce it unless it is declared a nullity or set aside by a superior Court. See; Osakwe vs. INEC & Ors.
(supra).
We therefore consider it improper for the 1st, 2nd and 3rd Respondents who were parties to the suit that gave rise to Exhibit B – B2 to come before this Tribunal to canvass the view that we should close our eyes to it. We, therefore, resolve the 1st issue against the Respondents in favour of the Petitioners.
The second issue for determination is whether the Petitioners have proved their case to be entitled to the reliefs sought.
From the uncontroverted evidence of PW1, PW2 and PW3 and the Exhibits admitted in the case; vis A1 A5, B B2, C, E and F respectively, it is our considered view that the Petitioners have proved their case and are entitled to the reliefs claimed.
We further hold, relying on Bayo vs. Njidda (supra) that all the votes cast for the 1st Respondent in the election under consideration are considered to have been thrown away and therefore null and void in view of the fact that the issue of his disqualification from contesting the April, 14 Kaduna State House of Assembly Election on the platform of the 2nd Respondent (PDP) was widely publicized to the electorate long before the election took place. To this effect, we hold that the electorates by the evidence before us were aware of the ineligibility of the 1st Respondent to contest the said election.
Where a disqualified person as in this case is elected, the law is that the votes cast for him do not count for any purpose and the candidate that scores the 2nd highest number of votes is deemed to have been elected if the facts of his disqualification were notorious and well known to the electorates before the election.
See; Ameokoja vs. Eyiowuawi (1961) All NLR 834 at 635. See also; Bayo vs. Njidda (supra).
For the foregoing and all we have stated in this judgment, the 1st Petitioner Barrister Emmanuel Bako Kantiok who contested the Kaduna State House of Assembly, for Zonkwa State Constituency on the platform of Action Congress (AC) and scored 13,7 66 votes, the highest number of valid votes cast at the election ought to have been declared the winner of the election by the 3rd and 4th Respondents.
We accordingly annul the return of 1st Respondent and declare him (Barrister Emmanuel Bako Kantiok of Action Congress) the winner of the election held on 14th April, 2007 for Zonkwa State Constituency of the Kaduna State”.
The Appellants, by their definitive steps, showed their disgust with the pronouncement of the trial Tribunal. They quickly lodged an appeal against the same. The 2nd and 1st Respondents, equally, found the said judgment a bit bizarre, which then, prompted them to filing a cross-appeal against the same judgment.
With regard to the substantive appeal, the parties filed their respective briefs of argument. Seven issues were framed in the Appellants’ brief for the determination of this Court, and they are reproduced hereunder, thus:
“1. Whether the tribunal was right in holding that the votes cast for the 1st Appellant (then 1st Respondent) were thrown away and wasted votes (Grounds 1, 2, 4, 6 of the appeal).
2. Whether the Honourable trial Tribunal was right in holding that the 1st Appellant (then 1st Respondent) was not qualified to contest the election (Grounds 3 & 7 of the appeal).
3. Whether the Honourable trial Tribunal was right in holding that the 1st Appellant was expelled from PDP (his party) and that expulsion was both widely published and that those voted for him knew that he was not qualified to contest before casting their vote (Ground 5).
4. Whether the 1st, 2nd and 3rd Respondents had the Locus Standi to challenge the sponsorship of the 1st Appellant by the 2nd Appellant when neither the 1st nor the 2nd Respondent belonged to the 2nd Appellant nor were the 1st or 2nd Respondent the person whom the 1st Appellant substituted as the candidate of the 2nd Appellant (PDP) (Ground 8 and 9 of the appeal).
5. Whether the Honourable trial Tribunal was right in refusing to grant the Appellants Motion praying for a stay of the tribunal’s proceedings pending the final determination of their appeal to the Court of Appeal challenging nullification of 1st Appellant’s sponsorship by the 2nd Appellant. (Ground 10 of the appeal) and also another Notice of Appeal challenging the tribunal’s refusal to extend their time (1 day later) within which to file the Reply to the petition which was already filed in error before seeking the leave (Ground 10).
6. Whether the Honourable trial Tribunal was right in preventing the Appellant from defending the petition in view of the fact on record that the refusal to file their Reply to the petition was being challenged on appeal in appeal No. CA/K/EP/SHA/37/2008 (Ground 12 of the appeal).
7. Whether the Honourable trial Tribunal had jurisdiction to entertain the petition in view of the fact that the 1st Respondent is not a natural personality capable of suing or being sued or being sponsored by the 2nd Respondent to contest the election complained of (Ground 11 of the appeal)”.
The 1st and 2nd Respondents, however, compressed the entire issues into two as follows:
“1. Whether the Tribunal was not right in holding that the 1st Appellant (1st Respondent in the Petition) was at the time of the election not qualified to contest the election. (Ground 3, 4 and 7 of the appeal).
2. Whether the Tribunal was not right in holding that all the votes cast for the 1st Appellant (1st Respondent in the Petition) in the election are considered to have been thrown away and therefore null and void, in view of the facts that the issue of his disqualification from contesting the election was widely publicized to the electorate long before the election took place, and the electorate were aware of his ineligibility to contest the election. (Ground 5 and 6 of the appeal)”.
Despite formulating the above issues for determination, the Respondent filed a Notice of Preliminary Objection contending that Grounds 1, 2, 3, 4, 6, 7 ,8, 9, 10, 11 and 12 of the Appellants’ Notice of Appeal are incompetent which inevitably rendered issues 1, 2, 4, 5, 6 and 1 of the Appellants’ brief of argument impotent.
Before dwelling on the substantive issues phrased for determination, common sense demands that the preliminary objection raised by the 1st and 2nd Respondents/Cross-Appellant be examined and trashed first.
It was contended by learned Counsel for the 1st and 2nd Respondents in their Brief adopted before this Court by Emeka Ogbonaya Esq; that grounds 1, 2 and 11 of the Appellants’ grounds of appeal are completely new grounds that did not emanate from any of the issues raised or argued before the Tribunal, and, that leave of the Court or that of the Tribunal was not sought for and obtained by the Appellants before raising them, and, that, definitely invalidated the said grounds and made them liable to be struck out. Learned Counsel explained that the issue, ‘whether it was the 1st Appellant or the 2nd Appellant that won the election, which sprouted from grounds 1 and 2 of the Appellants’ Notice of Appeal is glaringly, a new issue which contrasted sharply with the real issues before the Tribunal that anchored on section 106 paragraph (d) of the 1999 Constitution of Federal Republic of Nigeria as to whether the 1st Appellant was a member of the 2nd Appellant at the time of the election, and whether the 1st Appellant was sponsored by the 2nd Appellant to contest the election of 14/4/2007. Learned Counsel hinged his argument on the decisions in the cases of Anthony Nwachukwu vs. The State (2007) All FWLR) Part 390 p. 1380 at 1402 to 1403, paragraphs G to A and Chief Sergent C. Awuse vs. Dr. Peter Odili & Ors. (2005) All FWLR Part 261 248 at 295, paragraphs F to G and persuaded this Court to apply the same principle mentioned therein to the present appeal.
Counsel further stressed that section 221 of the Constitution of the Federal Republic of Nigeria, 1999, the pivot of the decision in Rt. Hon. Rotimi Chibuike Ameachi vs. Independent National Electoral Commission & Ors. (2008) All FWLR Part 407 p. 1 at 97 to 980 paragraphs G to B, which relates to intra-party and pre-election matters is irrelevant to the present case. He emphasised that the particulars to grounds 1 and 2 of the Notice of Appeal have no nexus whatsoever with the said grounds nor did the said particulars arise from the judgment of the Tribunal. He cited the case of Mrs. Wuraola Omotosho & Ors. vs. Alhaji Rashidi Eniayenfe Ojo (2008) All FWLR Part 408 p. 389 at 398, paragraphs F to H, and argued that the said particulars were incompetent, and, therefore should be struck out.
Counsel, further, flashed his light at grounds 3 and 7 of the Appellants’ Notice of Appeal, and issue No.2 raised in the Appellants’ brief of argument and alleged they were incompetent, judging from the fact that Particular 2 of ground 3 and Particular 1 of ground 7 sprung up new issues, that is to say, that the judgment of the Federal High Court in suit No. FHC/KD/CS/45/2007 is a subject of an appeal, even though there was no proof of such fact before the Tribunal and there was no finding of the Tribunal to that effect. He stated that where the Particulars or some of the Particulars of a ground of appeal are incompetent, the ground or grounds of appeal themselves become incompetent and ought to be struck out.
He further anchored his argument on the long entrenched principle of law that where a competent ground of appeal is argued with an incompetent ground of appeal under one issue, both the ground of appeal and the issue become incompetent. He cited the cases of Alhaji Abdu Usman Maidilra vs. Alhaji Shehu Halilu (2000) FWLR Part 19 p. 433 at 448 to 449, paragraphs G to B; and Sunday Oyebadejo vs. Ramoni Olaniyi & Ors. (2000) FWLR Part 5 829 at 846, paragraphs A to C to support his views on this point. He further made reference to the cases of Alhaji Abdu Usman Maidara vs. Alhaji Shehu Halilu (2000) FWLR Part 19 p. 433 at 448 to 449) paragraphs G to B; and Sunday Oyebadejo vs. Ramoni Olaniyi & Ors. (2000) FWLR Part 5 829 at 846, paragraphs A to C and Independent National Electoral Commission & Ors. vs. Action Congress & Ors. (2009) 2 NWLR Part 1126 p. 524 at 584, paragraphs C to E, and submitted that any point of law or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the point remains valid and binding on the parties. He contended that Grounds 8 and 9 of the Appellants’ Notice of Appeal are incompetent due to their emergence from the ruling of the Tribunal delivered on 15/7/2008 which have not been appealed against by the Appellants. He further argued that the said grounds 8 and 9 cannot be resuscitated before this Court, because the issues bordering on locus standi and jurisdiction of the Tribunal to hear and determine the Petition had already been determined by this Court in the case of Barrister Emmanuel Bako Kantiok & Anor vs. Kantiok Irmiya Ishaku & Ors. (2009) All FWLR Part 455 p. 1754 at 1759, paragraphs D to F, which was founded on two grounds of appeal i.e.: that the 1st Respondent was at the time of the election, not qualified to contest the election; and
ii. that the 1st Respondent was not duly elected by majority of lawful votes cast at the election”.
To buttress this point, he further relied upon the case of Chief Sunday Ogunyade vs. Solomon Olayemi Oshunkeye & Anor. (2007) All FWLR Part 389 p. 1179 at 1207, paragraphs A to B and urged that the same be struck out.
Counsel further demonstrated that grounds 10 and 12 of the Appellants’ Notice and Grounds of Appeal are not competent, since they relate to the ruling of the Tribunal delivered on 15/1/2009 and therefore should be struck out. He referred to pages 398 – 400 and 421 – 423 of the record which showcased the said ruling and the Notice of Appeal, and, submitted that their inclusion in this appeal constituted abuse of Court process. The case of Hon. Michael Dapian Long & Ors. vs. Chief (Dr.) Joshua Chidi Dariye & Anor. (No. 1) (2007) All FWLR Part 373 p. 1 at 71, paragraphs F to H was readily available to support the assertions. In conclusion, learned Counsel invoked the decision of this Court in the case of Alhaji Sule Haruna Tahir & Anor. vs. Bank of the North Limited (2007) All FWLR Part 388 p. 1072 at 10980 paragraphs F to H and submitted the Appellants’ issues Nos. 4, 5, 6 and 7 raised and argued in the Appellants’ brief of argument are not competent since they arose out of incompetent grounds 8, 9, 10, 11 and 12 of this appeal and should therefore be struck out. He summed up by persuading this Court to strike out issues Nos. 4, 5, 6 and 7 on ground of incompetency.
The Appellants filed a Reply Brief for the purposes of negativing the points raised in the 1st and 2nd Respondents’ preliminary objection. I would, later, in the body of this judgment, highlight the same.
Now submitting in respect of the issues formulated by the Appellants, their learned Counsel, S. O. Omoloba (Mrs.) contented in respect of issue No. 1 presented by them, that none of the witnesses called by the 1st and 2nd Respondents testified to the effect that those who exercised their franchise totaling about 43,102, votes cast at the said election in favour of the 1st Appellant knew that the 1st Appellant was disqualified before they cast their votes for him. He claimed that to prove that, it is squarely on the shoulders of those who did cast the said votes to convince the Court in that direction. He said that the evidence of P.W.1 under cross examination showed that he did not cast his vote for the 1st Appellant, the same thing applied to the evidence of P.W.3. Learned Counsel recaptured the number of total votes cast for each candidate and argued that it was wrong for the trial Tribunal to have held as it did that it robbed all the voters who cast their votes for the 1st Appellant of their rights to choose a candidate of their choice.
Counsel stressed that not even a soul from any media house was invited to testify that they made a broadcast to that effect i.e. that those who cast their vote for the 1st Appellant knew before doing so, that he was either disqualified or not qualified to contest the said election. He referred to the book titled “Criminal Evidence in Nigeria” (1st Edition) by Bodede and published by Florence Lambard (Nig) Ltd. and the case of INEC vs. Action Congress (2009) 2 NWLR Part 1126 p. 526 at 595 596, and emphasised how fundamental it was to call the maker of the tape or film to identify the contents of the same, that is to say, proper foundation has to be laid, i.e. his source of the accorded speech and how it was obtained must be explained. Counsel further stressed that the copy of the newspaper report is inadmissible for failure to lay foundation for tendering it as required by section 116 of the Evidence Act, which says that the Court shall presume the genuineness of every document purporting to be the official Gazette of Nigeria or of a State or the Gazette of any part of Commonwealth or to be a newspaper or journal, e.t.c., if such document is kept substantially in the form required by law and is produced from proper custody.
Counsel referred to Oneh vs. Obi (1999) 7 NWLR Part 611 p. 487 at 499 where it was held that by the provisions of section 116 of the Evidence Act, a newspaper is admissible if produced from proper custody which invariably means that in respect of newspaper, the proper custody will be the publishers of the newspapers or registrar of newspapers. He submitted that by virtue of section 74 of the Evidence Act, the Tribunal ought to have taken judicial notice of the fact that Nigeria is a predominantly illiterate country. On this point, he also found support in the book titled; “Law and Practice Relating to Evidence In Nigeria” by T. Akinola Aguda (2nd Edition) at p. 192. He strongly contended that the election was won by the 2nd Appellant and not by its sponsored candidate, and relied heavily on the decision in Amaechi vs. Omehia (1065) 98 at 106 (Supreme Court), Amaechi vs. INEC (2008) 5 NWLR Part 1080 p.2270 per Oguntade, J.S.C., at pages 318 – 319 and contended that if it came to worse, the order the Tribunal could have made against the Appellants was for a bye-election in the Constituency.
Turning to issue No. 2, i..e., the claims that the 1st Appellant was not qualified to have contested the election and the Tribunal reliance on a purported letter of expulsion of the 1st Appellant from PDP, and the order of the Federal High Court, Kaduna in suit No. FHC/KD/CS/45/2007, learned Counsel made reference to the testimony of P.’W’.2 at p. 391 of the record that when it comes to a decision of a Political Party, the decision at the ward level is inferior to the ones both at the State and National level and that the one at the National level is topmost in order of hierarchy. Further Counsel referred to the testimony of P.W.2 at lines 14 – 17 at p. 390 where he admitted that it is the National level order of a Political Party that overrides the order made at ward level. He contended that even if the ward members had expelled the 1st Appellant, the fact that the Party at the National Level refused to endorse the same, indicates that the order is void. He stressed on the platform of the evidence of P.W.2 , that P.W.2 is not a member of PDP, and, that PDP National or State level never received any information on the purported expulsion of the 1st Appellant. Rather, the candidacy of the Appellant was endorsed by the National level of PDP on the 5th February, 2007. He submitted that there was no proof before the Tribunal that PDP withdrew its sponsorship of the 1st Appellant due to the purported letter of expulsion.
Counsel dealt with the issue of the Federal High Court’s ruling by reproducing a portion of the judgment in Vaswani Trading Co. vs. Sarvalaki & Co. (1972) 12 Supreme Court, and further invoked the decisions in Okafor vs. Nnaije (1987) 1 SCNJ 1 and Federal Republic of Nigeria vs. Abacha (2008) 5 NWLR Part 1081 at 653 paragraphs B – C, where it was held that if there is an interlocutory appeal on a ruling regarding the preservation of the res in the action, a trial Court should stay proceedings pending the outcome of the appeal. He argued that no one would claim that the Tribunal was unaware of the pendency of the appeal and the Motion on Notice for stay of proceeding, and another one for stay of proceeding filed and argued at the Tribunal on the ground of pendency of the appeal, yet, the Tribunal refused to stay the proceedings. Counsel further highlighted the testimony of P.W. 1 where he confirmed that the appeal is still pending and then likened the refusal by the trial Tribunal to await the judgment of the Court of Appeal in the appeal, to a Court giving judgment when the entire case has not been concluded.
On issue No. 3, learned Counsel cited the cases of Edokpolo vs. Semi-Edo Wire Industries Ltd. (1989) 4 NWLR Part 116 p. 473 and INEC vs. Action Congress (2009) 2 NWLR Part 1126 p.524 at 595 – 596 paragraphs A – B and argued that no proper foundation was laid for admissibility of Exhibits A1 – A5 (the purported letter of expulsion). He stated that the endorsement of the recipient in a dispatch book or oral evidence of its delivery ought to have been established before the Court. He submitted that a mere notice to produce a document which the party on the other side denied receiving or having in his custody cannot qualify a photocopy of the said document to be tendered just like that. Learned Counsel then, replicated her argument under issue No .2.
Dealing with issue No. 4, learned Counsel contended that the only person who ought to have enforced or benefitted from the said judgment of the Federal High Court was Francis Duniya, and not the 1st Respondent who had no connection with Francis Duniya nor did he have membership of the 2nd Appellant. The case of Anselem Onejeme vs. Hon. Mrs. Eucharia Azodo & Ors (2005) page 575 paras. F -G was cited in support of the proposition. In the said case, it was expressed that once a Party has evidentially intended to change its candidate for any election, the Court would have no business in interfering with the Party’s decision, especially when the person challenging the candidacy of the sponsored candidate is not a member of that Political Party, neither is he claiming to be the candidate being sponsored by that Party for the election. Counsel stated that there was a world of difference between the cases of Onejeme vs. Azodo (supra) and Amaechi vs. Omehia, in that, in Amaechi’s case, the parties therein belonged to the same Political Party. Amaechi won the primaries but the Party gave the ticket to Omehia. Counsel then emphasised that Amaechi would have lacked the locus standi to sue on that had he been a member of another Political Party.
Turning to the 5th issue, the case of Federal Republic of Nigeria vs. Abacha (2008) 5 NWLR Part 1081 p. 634 at 657 was drawn to the attention of this Court by the Appellants’ Counsel, in which it was held that if it appears on the face of the materials available to the Court that the interlocutory appeal may finally dispose of the case, it may be necessary to order a stay of proceedings. He then submitted the trial Tribunal ought to have adjourned the hearing of the petition temporarily to await the decision of the Court of Appeal, particularly, when legal authorities were cited tilting to the fact that extension of time to file a Defence in an election petition must be granted, as an election petition cannot be heard in default.
In respect of issue No. 6 which deals with the pendency of the appeal No. CA/K/EP/SHA/31/2008, against the refusal of the Tribunal to enlarge the time within which the Appellants would file their Reply in the Petition, learned Counsel referred to Buhari vs. INEC (unreported) CA/A/BP/2/2007 delivered on 14/8/2007 to buttress the point that time to file defence can be extended especially where they had already been filed before the Court, a Motion on Notice to regularize their position therein. Counsel then reproduced some paragraphs of the Reply filed by the Appellants at the trial Tribunal which was disallowed thereat for being filed out of time. He also commented that the Appellants’ Motion for an order striking out the Petition for want of capacity to sue was equally dismissed by the Tribunal. Counsel said that the Tribunal was aware of the pendency of the Motion on Notice for an order staying proceedings of the Tribunal pending the determination of the Appellants’ appeal that had been entered against its decision not to grant them extension of time to file their defence to the Petition, yet, the Tribunal proceeded with the hearing without waiting for the opinion of the Court of Appeal on the application for stay of proceedings. The reason given by the Tribunal was that an appeal against an interlocutory decision does not allow a stay of proceedings under the Practice and Procedure of Election Matters.
Learned Counsel disagreed with that proposition and then cited the cases of Awuse vs. Oditi (2003) 18 NWLR Part 851 p. 116, Abubakar vs. Yaradua (2008) 4 NWLR Part 1078, 465 at 503 paragraph D, and Adighije vs. Nwaogu (2009) 2 NWLR Part 1125 p. 231 at 258 paragraph A – F and submitted in fair hearing, an election trial should not be sacrificed at the altar of speed. On the 7th issue, learned Counsel said there was a huge difference between the names; “Barrister Emmanuel Bako Kantiok” and “Emmanuel Bako Kantiok”. On this note he referred to the case of Esenowo vs. Ukpong (1995) 1 SCNJ 1 where the Supreme Court noted the difference between the names; “Dr. E. J. Esenowo” and “Dr. J. E. Esenowo”. Counsel then submitted that the 1st Appellant is not a natural person who can either be sponsored as a candidate for, or be returned as an elected member of Kaduna State House of Assembly.
In their response, the 1st and 2nd Respondents, via their Counsel, argued in respect of issue No. 1 that the trial Tribunal was right when it held that Exhibits A1 – A5 show that the 1st Respondent did not win the primary election of the 2nd Appellant which went ahead to expel him from its membership, and therefore, had ceased to be a member of the PDP on which platform he purportedly contested the election, that Exhibits B – B2, the order of the Federal High Court confirmed that the bid to substitute Honourable Francis Madaki Duniya with the 1st Appellant failed.
He narrated that the said Petition was predicated on two grounds, that is to say; section 106(d) of the Constitution of the Federal Republic of Nigeria, 1999 and section 145(1)(a) and (c) of the Electoral Act 2006, entrenched in the case involving the parties herein in Appeal No. CA/K/EP/9/97 or (2009) All FWLR Part 455 p. 1754 at 1759, paragraphs D to G. He explained that the evidence led at the lower Tribunal by the 1st and 2nd Respondents
herein was in line with the aforestated two grounds. Counsel shifted his focus to the viva voce evidence of P.W.1, P.W.2 and P.W.3 on 20/11/2008, their respective Sworn Statements On Oath which they adopted before the trial Tribunal, and, Exhibits A1 -A5, B -B.2, C, D, E, F, and H, and through which, he strongly claimed, the 1st and 2nd Respondents established their case before the trial Tribunal. He, also, mentioned the case of Anselem Onejeme vs. Hon. Mrs. Eucharia Azodo & Ors (2005) All FWLR 550 at 572, paragraphs B -E, where it was held that by virtue of the provisions of section 106(d) of the Constitution of Federal Republic of Nigeria, membership of, and, sponsorship of by a Political Party is one of the qualifications for election to a State House of Assembly, and, where a candidate is not so sponsored, he can be said not to have qualified for such an election and, that such non-sponsorship qualifies as a ground under section 134(a) of the Electoral Act 2002 for questioning the election. Learned Counsel for the 1st and 2nd Respondents invited us to adopt the exposition of the law made in Onejeme vs. Azodo (supra) since section 13a(a) of the Electoral Act, 2002 is in pari materia with section 145(1)(a) of the Electoral Act, 2006 applicable to this case. He stated that there was a misconception on the part of the Appellants’ Counsel regarding his argument over issue No. 1, because, Exhibits A1 – A5, being the letter via which the 1st Appellant was jettisoned by the 2nd Appellant represent the proceedings of the 2nd Appellant on the issue and that no oral testimony, no matter how strong it is, can vary their contents on the footing of section 132(1) of the Evidence Act.
He pointed out that P.W.2 did not contradict the contents of Exhibits A1 – A5, and, no valid evidence was proffered by the Appellants indicating the 2nd Appellant’s refusal to endorse the said Exhibits. He then argued relying on section 139 of the Evidence Act that the burden rested squarely on the Appellants to adduce evidence to the contrary establishing that the 2nd Appellant, both at the State, and, National level, did not endorse Exhibits A1 – A5, did not withdraw the sponsorship of the 1st Appellant for the election or had a higher authority than its Ward level. Learned Counsel admitted that the 1st and 2nd Respondents were not parties in the case at the Federal High Court, Kaduna, but, however, remarked that since the order made by the said Court has not been set aside by the Court of Appeal, the trial Tribunal was entitled to give effect to them, i.e. Exhibits B – B2. He relied on the principle stated in Barrister Vincent Osakwe vs. Independent National Electoral Commission (INEC) & Ors. (2005) All FWLR P art 261 p. 325 at 349 paragraphs A – C where it was held that a judgment of a Court of law is presumed valid, and, the parties concerned are not only bound to obey it, but the authorities charged with responsibilities for enforcement of judgment are also obliged to enforce it unless it is declared a nullity or set aside by a Court of competent jurisdiction. He further referred to paragraph 10 of the Practice Direction No . 2 of 2007 which stipulated that an interlocutory appeal shall not operate as a stay of proceedings nor form a ground for a stay of proceedings before the Tribunal, and, the case of Vaswani Trading Co. vs. Savalak Co. (supra), Okafor vs. Nnaile (supra) and Federal Republic of Nigeria vs. Abacha (supra) and urged the Court to discountenance the Appellants’ argument that the Tribunal ought to have stayed its proceedings pending the outcome of an interlocutory appeal.
With regard to issue No. 2, it was submitted that the Tribunal was right when it held inter-alia that relying on Bayo vs. Njidda (supra), all the votes cast for the 1st Respondent i.e., 1st Appellant, in the election have been thrown away and therefore null and void in view of the fact that the issue of his disqualification from contesting the April 14th Kaduna State House of Assembly Election on the platform of the 2nd Respondent (PDP) i.e. 2nd Appellant, was widely publicized to the electorate long before the election took place, and, by that, the electorate were aware of the ineligibility of the 1st Appellant to contest the election. He argued that the voters knew before voting or were deemed to have known that the 1st Appellant had been expelled from the 2nd Appellant, that he was no longer sponsored by the 2nd Appellant and that the 2nd Appellant did not sponsor any candidate for the election. He said they were clearly depicted in the evidence of P.W. 1, P.W.2 and P.W.3 and Exhibits A1 – A5, B – 82, D, E, F, and H. Counsel relied heavily on the case of Siddioq Jauro Bayo vs. Don Daj Hililu Njidda & Ors (2004) FWLR Part 192 p. 10 at 84 paragraphs C – G, in which the case of Re Bristol South East Parliamentary Election (1961) 3 All ER 354 at 379 DC, (1994) 2 QB 257 was referred to. He also adopted some of the arguments tendered in respect of their issue No. 1 as part of his argument hereat and equally contended that there was no evidence before the Tribunal that the 43,102 voters who cast their votes for the 1st Appellant did not know about his disqualification before casting their votes. He said that the Appellant should have led evidence to the contrary pursuant to section 139 of the Evidence Act (supra). He submitted that the Appellants did not produce any evidence at the trial, only the 1st and 2nd Respondents did. He relied on Monday Agienoji vs. Commissioner of Police, Edo State & Ors (2007) All FWLR Part 367 p. 887 at 900 to 901 paragraphs H -A and submitted that the trial Tribunal was right to have relied on the evidence before it. He further argued that the law did not place onus of proving such on the 1st and 2nd Respondents and that even if they had so provided, the evidence would have been inadmissible. Counsel further cited the cases of West African Examination Council vs. Felix Iwarue Oshionebo (2007) All FWLR Part 370 p. 1501 at 1516 paragraph C, Godpower Orlu vs. Chief Godwin Onyeka (2007) All FWLR Part 370 p. 1520 at 1526 paragraphs E F, Justice Party & Anor vs. Independent National Electoral Commission & Ors (2006) All FWLR Part 339 p. 907 at 944 paragraph F, section 77(5)(b) of the Evidence Act, a book titled, “Civil Evidence in Nigeria” (supra) the case of INEC vs. Action Congress (supra), section 116 of the Evidence Act, Mallam Abdu Bello Ho & ors vs. I and S International Limited (2005) All FWLR Part 254 p. 822 at 828 paragraphs F G, Amaechi vs. Omehia (supra), Independent National Electoral Commission & Ors vs. Action Congress & Ors (supra) at 586 paragraph H, and section 221 of the 1999 Constitution of Federal Republic of Nigeria. He stressed that by section 156 of the Electoral Act No. 2, 2006, no person who has voted in any election under the Act, shall in any proceeding arising out of the election, be regarded to say for whom he voted, therefore, the argument of the Appellants on the point that the evidence produced by the 1st and 2nd Respondents were insufficient to prove that the votes cast for the 1st Appellant were thrown away was utterly irrelevant. He further stressed that there was no disputation on whether the Television Stations or Radio Stations announced the disqualification of the 1st Appellant between 28th and 29th March, 2001 and it was equally borne out in the testimonies of P.W.1, P.W.2 and P.W.3 that they saw on the Television and heard from it the said broadcast, therefore, the need to call the media people did not arise. He emphasised that the book titled, “Criminal Evidence in Nigeria” (supra) and the case of INEC vs. Action Congress (supra) cited by the Appellants’ Counsel are irrelevant. He further stressed that the presumption in section 116 of the Evidence Act did not arise. He further directed the focus of this Court on pages 1 -24 of the Daily Trust Newspaper published on the 6th April, 2007 and tendered as Exhibits “E” and “F” at the Tribunal, and, stated that, they are “private documents” not “public documents”. On this point, he drew strength from the decision in Mallam Abdu Bello Ho & Ors vs. I and S International Limited (supra). He therefore submitted that the trial Tribunal was right in its ruling during the trial that the Newspaper which is regarded as a public document by the provision of section 116 of the Evidence Act, is one published by a government publisher and not any other, and there was no evidence that the Daily Trust sought to be tendered is a public document. He also urged the Court not to take judicial notice of a purported fact that Nigeria is predominantly illiterate Country.
Counsel further stated that the Tribunal was right to hold that the votes cast for the 1st Appellant do not count for any purpose and that the candidate that scores the 2nd highest number of votes is deemed to have been elected by the facts of his disqualification were notorious and well known to the electorate before the election. He equally submitted that the case of Amaechi vs. Omehia (supra) was cited by the Appellants’ Counsel out of con, and, therefore, did not apply to this case because the election purportedly won by the PDP has been annulled by the Election Tribunal and, the subject matter, (res), was taken away from the 2nd Appellant and given to A.C. Counsel further contended that where a political party as the 2nd Appellant in this appeal, sponsored an unqualified candidate as the 1st Appellant, the political party cannot be said to have participated in the election because its participation in the election in the first place is predicated upon its sponsorship of a qualified candidate, not the sponsorship of unqualified/disqualified candidate.
He further cited INEC vs. A.C. & Ors (supra) at 556 paragraph H.
As regards issue No. 3, learned Counsel submitted that no foundation is required to be laid for the admissibility of Exhibits A1 – 45 other than as provided in section 98 of the Evidence Act. He referred to Awuse vs. Odili (supra) at p. 296 paragraphs F – H and submitted that the Appellants are estopped from contradicting Exhibits A1-A5. He further contended that no evidence was produced by the Appellants to show that Exhibits A1 – A5 were not served on the 1st Appellant, and, it was not the duty of the 1st and 2nd Respondents to prove that Exhibits A1-A5 were received by the 2nd Appellant at the National level or that the 2nd Appellant at the National level can decide to accept the expulsion or decided to withdraw the 1st Appellant’s sponsorship due to the Exhibits A1-A5. He asserted that the burden were on the Appellants to prove the same by virtue of section 139 of the Evidence Act. He stressed that the Appellants’ Counsel via the Appellants’ Answer to the Prehearing Information Sheet at paragraph 10 expressly and unequivocally admitted paragraphs A3, A5 and D3 of the Petition which paragraphs relate to Exhibits A1 – A5 had himself admitted the existence, truth and positive effects of the Exhibits. Therefore, by virtue of section 75 of the Evidence Act the 1st and 2nd Respondents need not prove such admitted facts. He argued that the case of Buhari vs. INEC does not apply to the Appellants’ situation in this appeal since they decided not to file their Reply within the time allowed by the Statement and when their application for extension of time was refused they failed to appeal against it for over a year and four months and the Tribunal then heard the Petition without the Appellants’ Reply. He then urged that the third issue be answered in the affirmative.
In relation to issue No. 4, learned Counsel emphasised that the contention of the 1st and 2nd Respondents has always been that 1st Appellant was not a member of the 2nd Appellant as at the time the election took place, and, that 2nd Appellant neither sponsored the 1st Appellant nor any other candidate for the election. He, therefore, submitted that the trial Tribunal was right when it held on 22/01/2009 that there is no evidence ever existed showing that the said order of the Federal High Court in Exhibit B – B2 had been set aside, relying on the case of Osakwe vs. INEC (2005) All FWLR Part 261 p. 325 at 349. He urged this Court to hold that the Appellants were bound to obey the orders in Exhibits B – B2 since they were parties therein. Counsel further submitted that the order of the Federal Court is generally applicable to every member of the society. He contended that the cases of Onejeme vs. Azodo (supra) and Amaechi vs. Omehia (supra) cited by the Appellants’ Counsel are irrelevant to this case because they relate, to pre-election and intra-party issues. He referred to the judgment of the Tribunal delivered on 22/01/2009, at pages 410 – 411 of the record that the 1st and 2nd Respondents have the right to approach the trial Tribunal to determine whether at the time of the election the 1st Appellant was qualified or not to contest the election. He then urged the Court to uphold the fact that the 1st and 2nd Respondents had the locus standi to challenge the sponsorship of the 1st Appellant by the 2nd Appellant in the petition.
On issue No. 5, Counsel submitted that 1st and 2nd Respondents were unaware of any appeal in suit No. FHC/KD/CS/45/2007 impugning the decision of the Federal High Court, Kaduna, since they were not parties thereto and the issue of staying the proceedings in the petition, pending the outcome of an appeal not known to the 1st and 2nd Respondent and the Tribunal did not arise in any manner at all. He stressed that issue No. 5 should have been treated under the appeal filed against the ruling of the Tribunal delivered on 15/01/2009. He submitted that the trial Tribunal was right when it held inter-alia on 15/1/2009 that the Respondents are just praying the Tribunal to stop further hearing of the said petition pending the outcome of the interlocutory appeal filed on 9th July, 2007 which was entered at the Court of appeal on 13th November, 2008 as appeal No. CA/K/EPA/SHA/37/2008 and so decided that the Respondents’ prayers lacked merit because according to section 148 of the Electoral Act of 2007, the Practice Direction No. 2 of 2007 and case of Aregbesola vs. Oyinlola (2008) All FWLR Part 436 p. 2018, election petition are accorded accelerated hearing. He finally urged this Court to affirm the decision of the Tribunal in refusing to grant the Appellants’ Motion praying for a stay of its proceeding pending the determination of the interlocutory appeal No. CA/K/EP/SHA/37/2008.
Dealing with issue No. 6, Counsel submitted to this Court that issue No. 6 was not supposed to be argued in this very appeal as a result of the fact that it was the theme of appeal No. CA/K/EPA/SHA/37/08, entitled Kantiok Irmiya Ishaku & Anor. vs. Barr. Emmanuel Bako Kantiok & Ors which was long adjourned for hearing, on that note, he urged this Court to strike out this issue No. 6 because one issue arising between the same party was supposed not to be argued in two separate appeals, between the said same parties. He called to aid the cases of Abayomi Babatunde vs. Pan Atlantic Shipping and Transport Agencies Ltd. & Ors. (2007) All FWLR Part 372 1721 at 1750 to 1751, paragraphs A to C, Bisi vs. Mairuwa (1996) 8 NWLR Part 467 p.425 at 433 paragraphs A – B and F – G, Kajubo vs. The State (supra), Fadiora vs. Gbadebo (1978) NSCL (Vol. 1), Alhaji Shehu Babule vs. Tanerewa Nigeria Limited (1995) 2 NWLR Part 380 p. 728 at 738, Iyiola Omisore vs. The State (2005) All FWLR Part 241 p. 1515 at 1527 paragraph A and he urged this Court to discountenance the Appellants’ 6th issue for being based on void proceedings and misconceptions. Counsel also submitted that the Tribunal never stopped the Appellants from defending the petition that the Appellants fully participated throughout the trial of the Petition and even objected to the admissibility of documents in evidence, and cross-examined P.W.1, P.W.2 and P.W.3. He also stated that the ruling of the Tribunal delivered on 11/11/2008 confirmed thus:
“On the 4th prayer, it is also our considered opinion that by the Tribunal’s ruling on 26th July, 2007 that we are therefore of the view that the Respondents cannot be stripped off the party regalia for want of memorandum of Appearance and Reply since their becoming parties in the first instance were not conditionally premised on acquisition of same.
Logically, we therefore are of the view that shut out in Gwandu case (supra) simply means shut out from filing the Reply that was the issue in question before the Court and it does not mean that the Respondents were struck out as parties from the case”.
Counsel referred to the case of Bernard Okoebor vs. Police Council & Ors. (2003) FWLR Part 164 p. 189 at 210, paragraphs C to D which stated thus:
“A Defendant who fails to file a statement of defence cannot in law lead oral evidence because the oral evidence, not pleaded, will be no avail. See Awoyegbe vs. Ogbeide (1988) 1 NWLR Part 73 p. 695, Ayuocha vs. Aguocha (1986) 4 NWLR Part 37 p. 566, Ugo vs. Obiekwu (1989) 1 NWLR Part 99 p. 566, Ogboda vs. Adulugba (1971) 1 All NLR 68, Atane vs. Amu (1974) 10 SC 237”.
Counsel further, submitted also, that the cases of Buhari vs. INEC (supra), Awuse vs. Odili (supra) Abubakar vs. Yar’Adua (supra) referred to by the learned Appellants, Counsel on the 6th issue to this case are irrelevant and urged the Court to hold that, the trial Tribunal never prevented the Appellant from defending the Petition.
As regard to issue No.7, Counsel submitted that the 1st Respondent stated his names and profession as Emmanuel Bako Kantiok, adult, male, Christian, Nigerian citizen of X1 Ibadan Street/Katsina Road, Kaduna; as a Barrister and solicitor of the Supreme Court of the Federal Republic of Nigeria and as the 1st Petitioner in this Election Petition. Counsel therefore, submitted that it has never been established to be offence for any legal practitioner in Nigeria to add to his name suffixes and prefixes such as SAN, Barrister or Esq.
Counsel stated that the case of Esenowo vs. Ukpong (supra) referred to by the Appellants’ Counsel was not against the addition of the title “Dr.” to the names of the Medical Doctor, but against the changes in his inertias from “J. E. Esenowo” to “E. J. Esenowo”. He then stated that the learned Appellants’ Counsel can never rely on the said authority of Esenowo vs. Ukpong to challenge the addition of the title Barrister to the names of the 1st Respondent. Counsel then urged this Court to hold that the 1st Respondent is a natural personality, that he contested the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency, under the platform of the Action Congress (AC) and that he scored the majority of the valid votes cast at the election held on 14/04/2007.
In the Appellants’ Reply Brief, particularly, regarding the preliminary objection raised by the 1st and 2nd Respondents, learned Counsel for the Appellants explained that Grounds 2 and 11 are competent, that they arose from the decision of the trial Tribunal that nullified the Appellants’ election, and declared the 1st Respondent winner, and, issue of jurisdiction. He cited Atkali vs. Alkali (2002) 1 NWLR Part 748 p. 453 at 464 where it was held that issue of jurisdiction cannot be frustrated by any disability or restriction and, can, therefore, be raised at any stage of the proceedings.
As for Grounds 8 and 9, learned Counsel referred to the judgment of the lower Tribunal delivered on 22/1/09 where it held that the Petitioners’ i.e., the 1st and 2nd Respondents, have the legal standing to approach the Tribunal. See pages 408 – 411 of the record. Counsel further referred to the Court of Appeal decision in an unreported Appeal No. CA/K/EPA/9/07 between Barrister Emmanuel Bako Kantiok vs. Kantiok Irmiya Ishaku & Ors and submitted that the Court having nullified the decision of the Tribunal on the basis that the Petitioners were not given fair hearing said other issues were otiose and did not make any pronouncement on them. He stressed that there is no subsisting ruling or decision of this Court on the issue of whether or not ground 1 of the Petition is valid. He relied on Duke vs. Global Excellence Communication Ltd. (2007) 5 NWLR Part 1026 p. 81 at 115 paragraphs B – C, 115 – 116 paragraphs B – A on the proposition that the issue was not decided. He said that Ground 10 arose from the decision of the Tribunal. With regard to Ground No. 12, he said it did not arise from the ruling of 15/1/09 and, it is not an abuse of Court process for an Appellant who was denied his right of being heard to complain. Counsel cited Chime vs. Onyia (2009) 2 NWLR Part 1124 p. 1 at 37 paragraphs C – D. He explained that the ruling of 15/01/09 in respect of which the Notice of Appeal was filed, complained against the refusal of the lower Tribunal to grant stay of proceedings and that relates to ground No. 10. He emphasised that no ground of the Appellants appeal complained of denial of fair hearing, therefore the case of Dapiolong vs. Dariye (supra) does not apply. He stated that Grounds 1,2,8,9, 10, 11 and 12 and issues 4, 5,6 and 7 formulated therefrom are competent. Learned Counsel therefore urged that the preliminary objections be overruled. On other points argued in the Reply Brief, the Appellants virtually reiterated their arguments in the main Brief of Argument which I have taken cognizance of.
I would now dissect the grounds of appeal on which the Appellants’ Notice of Appeal is pivoted to ascertain whether they were alien to the decision of the trial Tribunal or that by any implication, did not emerge or rear their heads from the pronouncements therein.
It is deducible from the judgment of the trial Tribunal that the very first issue it considered in its judgment bordered on the locus standi of the 1st and 2nd Respondents. See p. 408 of the record of appeal where it was glaringly stated thus:
“It is pertinent at this stage to resolve the issue of whether the Petitioners have the locus standi to institute this action as canvassed by the 1st and 2nd Respondents in their final address.
In sum, their objection is on the basis that the 1st Petitioner who is not a member of the same Political Party with the 1st Respondent lacks the requisite standing to challenge the candidature of the 1st Respondent and cannot therefore, maintain this petition. They argued that although the ground of the petition on the surface questions the qualification of the 1st Respondent, a holistic view of the petition reveals that the Petitioners’ complaints are on nomination/substitution which are internal or preliminary affairs of the Peoples Democratic Party which cannot ground a petition.
To the Respondents, the Petitioners are nothing but busy bodies and meddlesome interlopers who had no business or locus standi to question the candidature of the 1st Respondent since, as agreed by them, they were not members of the Peoples Democratic Party, the Party that sponsored the 1st Respondent for the election”.
After consideration, the trial Tribunal concisely held that the Petitioners, i.e., the 1st and 2nd Respondents have the legal standing to approach the Tribunal to determine whether at the time of the election the 1st Respondent was qualified or not to contest the election. See p. 411 of the record. This obviously threw the argument of Counsel for the 1st and 2nd Respondents off board as a conjecture that is most unfounded.
Ground No. 9 is challenging the jurisdiction of the Tribunal on the fact that the Petition questioned pre-election or intra party dispute as to which of the 2nd Appellant’s candidate it should sponsor. Issue of jurisdiction as commonly known, can be raised at any stage of the proceedings, even without leave of the Court, therefore this is competent.
With regard to Ground No. 10 which complained of the error in law committed by the lower Tribunal in refusing the Motion of the Appellants dated the 21st November, 2008 and filed on 24th November, 2008 asking for further stay of proceedings pending the determination of Appeal No. CA/K/EP/SHA/37/08, it is clear on the record, particularly, at pages 399 to 400, that the trial Tribunal delivered its considered ruling on 15/1/2009, in the said Motion filed by the Appellants on 24/11/2008 refusing the same. The contention of the Appellants is that even though appealed distinctively, it could be argued in this appeal.
Then, on the issue, ‘whether an Appellant can raise complaint against interlocutory order in an appeal against final judgment’, I must observe that there are divergent views on it, but, I tend to agree with the views expressed in the hereunder mentioned cases. In Umana vs. Attah (2004) 7 NWLR Part 871 p.63 at 87, where the case of Aondoakaa vs. Ajo (1999) 5 NWLR Part 602 p. 206 at 226 was referred to, it was held that a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision given in the course of a trial is competent. Further, in Okobia vs. Ajanya (1998) 6 NWLR Part 554 p. 348 Ogundare, J.S.C., said thus:
“On the issue that the Court below should not have considered the issue of Exhibit M raised by the defendants before it as there was no application to appeal out of time against the trial Court’s ruling on Exhibit ‘M’, my simple answer (in addition to what my brother Mohammed, J.S.C. said on the issue) lies in Order 3 Rule 22 of the Court of Appeal Rules which provides:
“22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just”.
The Court below was, therefore, not precluded from considering the validity or otherwise of Exhibit ‘M’ notwithstanding that the Defendants did not appeal against the trial Court’s ruling on the document. By virtue of Order 3 Rule 22, they could still raise the issue on appeal as they, in fact, did in the Court below. It is not necessary for them to seek extension of time to appeal against the interlocutory decision of the trial Court”.
This principle was recapitulated by the Supreme Court in Iweka vs. S.C.O.A. (2000) 7 NWLR Part 664 p. 325, again, per Ogundare, J.S.C., thus:
“The Plaintiff has argued that the Court below was in error since he complained about the trial Judge’s order in his appeal against the final judgment of Iguh, J. (as he then was) and cited NIPOL Ltd. vs. Bioku Investment Property Co. Ltd. (1992) 3 NWLR Part 232 p. 727 at 753 in support.
I think the Court below was wrong in the reason given by it for refusing the first motion.
Order 3 Rule 22 of the Rules of the Court of Appeal provides:
“22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just”.
Under this Rule a party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by trial Court even though he has not appealed against that interlocutory order when it was made. See Okobia vs. Ajanya & Anor. (1998) 6 NWLR Part 554 p. 348 at 364 – 365.
At this juncture, it is imperative to turn to the provisions of Order 18 Rule 10 of the 2007 Rules of this Court which is in pari materia with Order 3 Rule 22 of the 2002 Court of Appeal Rules which stipulates:
“No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.”
By the above provision and the elucidation of the principles by the Supreme Court in the aforestated cases, it would be pointless overstretching this issue of whether an Appellant can, in main appeal raise complaint against interlocutory order not appealed against, because of the plain and unambiguous wordings of Order 18 Rule 10 of the 2007 Rules, meaning, therefore, that one can complain in a final appeal about an interlocutory order against which he, previously, did not file any appeal. I believe this has effectively sorted out the 1st and 2nd Respondents’ arguments on grounds 10 and 12. It can therefore be authoritatively asserted that Grounds 10 and 12 are competent and could be raised in this final appeal.
Ground 11 challenges the competency of the petition having been allegedly instituted by an unnatural person or a non-juristic personality, it borders on jurisdiction.
It is clear on the record that Grounds 1 and 2 of the Appellants’ Notice of Appeal emanated from the judgment of the trial Tribunal.
See pages 418 and 419 of the record of appeal. Therefore, having examined all the Grounds of Appeal of the Appellants’ Notice of Appeal, it is my considered view that the Appellants’ Grounds of Appeal upon which the Notice of Appeal is predicated are competent having emerged from the judgment of the trial Tribunal with some challenging the jurisdiction of the trial Tribunal. I would now turn to the issues framed by the parties. It is necessary to note that the issues formulated by the Appellants are interrelated but, even at that, I would firstly, determine issues Nos. 4 and 7 together since they query the capacity of the 1st and 2nd Respondents to have filed the Petition.
The fundamental point raised in this sphere is that, neither the 1st Respondent nor 2nd Respondent nor 3rd Respondent is a member of the 2nd Appellant that allegedly expelled the 1st Appellant from its party.
Perhaps its need to be clarified as rightly observed by the trial Tribunal and clearly asserted by the 1st and 2nd Respondents’ Counsel, that the monumental reasons that spurned the 1st and 2nd Respondents to filing the Petition at the trial Tribunal as copiously shown in the processes filed by them were the existence of some alleged facts coupled with their conviction that the 1st Appellant was expelled by the 2nd Appellant from its Party, that the 1st Appellant was no longer a member of the 2nd Appellant nor was he sponsored by the 2nd Appellant. These, too, were my application of the reasons why the Appellants were slammed with that election Petition. See page 6 of the record where the grounds of the Petition were stated as follows:
i. that the 1st Respondent was, at the time of the election not qualified to contest the election; and
ii. that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
Further, it was averred at paragraphs A1 – A5, thus:
“A1. The 1st Petitioner is a member of the 2nd Petitioner, and its Candidate in the elections to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007.
A2. The 2nd Petitioner is a registered Political Party, which sponsored the 1st Petitioner as its candidate in the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007.
A3. The 1st Respondent was a member of the 2nd Respondent up to the 5th day of March, 2007 when he was expelled from the Party by means of a letter of EXPULSION AS A MEMBER OF PEOPLPS DEMOCRATIC PARTY, ZONKWA WARD’ copy of which is hereto annexed and marked ANNEX A, duly served on him, and on all the persons copied, and also pasted/posted in public places within the Zonkwa State Constituency.
A4. By the Order of the Federal High Court of Nigeria, Kaduna in Suit No. FHC/KD/CS/45/2007, entitled Honourable Francis Madaki Duniya vs. The Independent National Electoral Commission & Ors., made on or about the 28th day of March, 2007 copy of which is hereto annexed and marked ANNEX B, the 1st Respondent was not the 2nd Respondent’s candidate in the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007.
A5. The 2nd Respondent is a registered Political Party, which did not sponsor the 1st Respondent or any other candidate in the election to the Kaduna State House of Assembly, for the Zonkwa State Constituency of the Kaduna State of the Federal Republic of Nigeria, held on the 14th day of April, 2007”.
I must say that even though the Petition seemingly challenged the qualification of the 1st Appellant, it directly and unavoidably questioned the presentation or candidacy of the 1st Appellant arising out of the alleged intra party squabbles between the 1st Appellant and the 2nd Appellant. However, the grounds depicted in the said Petition and canvassed at the hearing of the same are clear, that is to say, that the 1st Appellant was disqualified to participate as a candidate at the said election of the 14th April, 2007.
I must admit there was a partial misconception on the part of the Appellants as to the exact grounds upon which the said Petition was based. If straight answer were to be apportioned to the questions posed as issue No . 4, that would not be faceoff as the cases of Zaranda vs. Tilde (2008) 10 NWLR Part 1094 p. 184 and Kolawole vs. Folusho (2009) 8 NWLR Part 1143 p. 338. In Zaranda vs. Tilde (supra), it was held that only a member of the same Political Party has a right of action for being wrongly or unlawfully substituted or changed. It is not a global or community right and it needs to be restricted as a purely domestic affair between members of the same Political Party and the Independent National Electoral Commission to sort in a Court of law. It was further held therein that the 1st Respondent therein lacked the locus standi to question whether or not the substitution or change of a candidate by the Political Party of his opponent at an election was proper or not proper. It was further demonstrated in Kolawole vs. Folusho (supra) that it is only an aggrieved member of a Political Party who can challenge the validity or otherwise of a fellow member’s nomination. This would have been the stance in the instance appeal had the 1st and 2nd Respondents grounded their petition on the validity or invalidity of the 1st Appellant’s nomination or sponsorship.
However, since central issue in their Petition was on the qualification of the 1st Appellant to participate at the said election, recourse should be had to section 106(d) of the Constitution of the Federal Republic of Nigeria which says that for a person to be qualified for election as a member of a House of Assembly, he;
(a) must be a citizen of Nigeria;
(b) has attained the age of thirty years;
(c) has been educated up to at least the School Certificate level or its equivalent; and
(d) is a member of a Political Party and is sponsored by that party.
Then, section 107 to which section 106 is subject, outlines the situation in which a person shall not be qualified for election to a House of Assembly. Section 145(1)(a) of the Electoral Act, stipulated the grounds upon which, an election may be questioned, which includes thus:
“145(1)(a) that a person whose election is questioned was at the time of the election not qualified to contest the election” The synergy of section 106(d) of the Constitution of the Federal Republic of Nigeria and 145(1)(a) of Electoral Act, 2006, is that if at the time of the said election to the Kaduna State House of Assembly for the Zonkwa State Constituency of the Kaduna State of Federal Republic of Nigeria, the 1st Appellant was not a member of the 2nd Appellant and then contested the election on the platform of the 2nd Appellant and was eventually declared as a winner of the said election, the 1st Appellant’s victory or election to the said House can be questioned on the ground that at the time of the election he was not qualified to contest, not being a member of any Political Party or that of the 2nd Appellant and not being sponsored by any party.
Section 144(1) clearly stated the persons entitled to question the election of the other party or present an election petition. It provides;
“An election petition may be presented by one or more of the following persons:
(a) a candidate in an election
(b) a political party which participated in the election”. Therefore, to have the capacity to challenge the election of the 1st Appellant in this appeal to the Kaduna State House of Assembly on the ground of non qualification by reason of him having been allegedly expelled by the 2nd Appellant, and, him not being a member of any Political Party. To be qualified to present a petition, the 1st and 2nd Appellant must have been either a candidate at the election or a political party which participated in the election. These, were clearly borne out in the incontestable facts averred in the pleadings of the 1st and 2nd Respondents at paragraphs A1 and A2 of their Petition filed on 10/5/07, paragraphs 3 and 4 of the 1st Respondent’s witness Statement on Oath made pursuant to paragraph 1(1)(b) of the Election Tribunal And Court Practice Directions, 2007, adopted by the 1st Respondent on 20/11/2008 and his oral testimony as P.W.1 before the lower Tribunal.
What the 1st and 2nd Appellants challenged was the qualification of the 1st Appellant to participate at the said election, but, not his sponsorship by the 2nd Appellant. Issue No. 4 therefore, is resolved in favour of the 1st and 2nd Respondents.
It is indisputable from the submission of the Appellants that the 1st Respondent was called to the Nigerian Bar as, ‘Emmanuel Bako Kantiok’. The descriptive word or title prefix ‘Barrister’ before the 1st Respondent’s name i.e., ‘Emmanuel Bako Kantiok’ is defined, at p. 107 of Oxford Advanced Learner’s Dictionary as ‘a lawyer in Britain who has the right to argue cases in the higher Courts of law’.
It is clear that the noun, ‘Barrister’ is not a human name, but, a title.
The note under lawyer at p. 836 of the Oxford Advanced Learner’s Dictionary, 7th Edition, says that in England and Wales, a lawyer who is qualified to speak in the higher Court of law is called a barrister. In Scotland, a barrister is called an advocate. Black’s Law Dictionary at p. 151 says; “In England, a ‘Barrister’ is an advocate, a Counsellor learned in the law who has been admitted to plead at the bar and who is engaged in conducting the trial or argument of causes. A person called to the bar by the benchers of Inns of Court given exclusive right of audience in the Supreme Court”.
In the same vein, when a lawyer is called to the Bar in Nigeria by the body of Benchers at the Nigerian Law School, and enrolled as a Barrister and Solicitor of the Supreme Court of Nigeria, he is endowed with the right to appear before any Court of justice in Nigeria for the purposes of advocacy. The roles of both a Solicitor and a Barrister are unified in him. It is simply an adjective to qualify a lawyer who has been called to the Nigerian Bar, but not a human name. I must remark that the argument of Counsel for the Appellants under issue No. 7 is unnecessary and unwarranted as it is a notorious fact that no person’s name is a Barrister, but, it is an adjectival title of a lawyer called to the bar. It is like a Medical Doctor using the prefix or title, ‘Dr.’, it can never be blindly argued that the prefix ‘Dr.’ represent a person’s real name. That, to me, cannot nullify, or invalidate the Petition or portray the 1st Respondent as a non-juristic person. It is also like the titles Mr., Mrs., Hon., Justice, e.t.c. They are in the same category as the adjectives or nouns describing the status of the individual concerned. Accordingly, issue No. 7 is resolved in favour of the 1st and 2nd Respondents.
I will now turn to issue No. 6, as to, ‘whether the Honourable Tribunal was right in preventing the Appellants from defending the Petition in view of the fact on record that the refusal to file their Reply to the Petition was being challenged as appeal in Appeal No. CA/K/EP/SHA/37/2008′ . In considering this issue, it must be noted that a party’s civil right and obligation can only be lawfully determined if he is given the opportunity to state his own side of the case, and, it has been continually expressed that the exercise of the Court’s discretion must not limit a party’s constitutional right. The record of this appeal showed that the Appellants were only a day late in filing their Reply, and, to regularize that, the Appellants, immediately, filed a Motion on Notice for extension of time with a prayer to deem the Reply already filed as properly filed and served, yet, the trial Tribunal, which seemed actuated by forces beyond legal reasoning, refused to grant the application, and, then proceeded with the hearing of the Petition despite the lodgement of an appeal against the said decision by the Appellants and a Motion for stay of proceedings filed by them. The trial Tribunal also refused to grant the Motion on Notice for stay of proceedings in the said Petition without giving the Appellant an inch opening to file their defence or Reply to the Petition. It is instructive to note that there is no provision in the Practice Directions which forbade enlargement of time to a defaulting Respondent to file his Reply. Honestly, one could not fathom the mad rush in shutting out the defence of the Appellants and preventing them from filing their Reply. This is absolutely deplorable because justice will not only be done but must be seen to have been. I am afraid to state that a serious miscarriage of justice appeared to have been occasioned to the Appellants by the unguarded and untoward approach and overzealousness of the trial Tribunal which was more interested in upholding and spreading up trials than administering and balancing the course of justice. The trial Tribunal had no legal justification whatsoever to have trammelled the Appellants’ right to fair hearing, moreso, when there was no undue or unreasonable delay on their part to file their Reply.
They, equally, demonstrated their eagerness to participate at the Tribunal by filing an appeal against the Tribunal’s decision and a further Motion for stay of proceedings. If trial Tribunal was truly serving the interest of justice, it ought to have given a hoot to the yearnings of the Appellants to be allowed to present their own side of the case. It is well established that a Court or Tribunal should not be seen to have barred a party from conducting his case as he wants or filing his defence in the case. It is trite that where a party’s right to fair hearing is breached, the entire proceedings are a nullity and it will be irrelevant that the decision arrived at by the Court or Tribunal is correct or not. In Usani vs. Duke (2004) 7 NWLR Part 871 p. 116, it was stated that ordinarily the Court does not readily grant an order staying proceedings because of the determined effort of the Court to determine all matters expeditiously, but, when a matter raises special or peculiar problems or circumstances, stay of proceedings may be granted, and that whilst delay of justice is regarded as a denial of justice, hasty justice is equally harmful. It is on this basis that, no matter how sound and brilliant the decision of the trial Tribunal might have been, it smacks of injustice, and, it should never be allowed to stand. Accordingly, this issue is resolved in favour of the Appellants.
Now dealing with issues Nos. 1, 2 and 3, it has to be recognized firstly, that the Appellants were not in the least allowed to file their Reply to the 1st and 2nd Respondents’ Petition, secondly, Exhibits A1 – 45 were not tendered by the 2nd Appellant nor did they come from any member of the 2nd Appellant’s Party, no member of the 2nd Appellant was called up by the 1st and 2nd Respondents.
Although, Exhibits B – B2 are certified copies of the said order made by the Federal High Court on the 29th March, 2007, but because, the Appellants were not permitted to file their Reply, the trial Tribunal, nor this Court had no opportunity of knowing, whether the said order still subsists or had been appealed against or set aside. I would not claim to be ignorant of the assertions of the Appellants’ Counsel that the said decision of the Federal High Court nullifying the 1st Appellant’s sponsorship had been appealed against and that the appeal had been entered. How could they have prevented the Appellants any fact before the trial Tribunal except they were authorized to file their Reply. The fact that the said order of the Federal High Court had been appealed against ought to have made the trial Tribunal to be circumspect, rather it rushed to deliver slaughtered justice. The best interests of justice in this appeal demands that the Appellants be heard on these material points before the trial Tribunal or this Court can authoritatively state, the true position or what the position were. Further, the Court ought to know which level of the Executive Committee of Peoples Democratic Party had the right to expel the caliber of the 1st Appellant from the party. I am not aware of any law authorizing this Court to take judicial notice of the Constitution of the Peoples Democratic Party, which, to me, is equivalent to the Articles and Memorandum of Association of a Limited Liability Company. It has to be tendered in evidence before the contents could be utilized or considered by the Court. How any member or certain classes of members in PDP are to be disciplined, punished or expelled from the party is not a notorious fact, commonly known by all and sundry, therefore, evidence still need to be led on the issue. If the Appellants were unreasonably shut out by the trial Tribunal to file their Reply, it would be an uphill task to arrive at a decision that the Tribunal was right in holding that the 1st Appellant was expelled from the 2nd Appellant, or that the 1st Appellant was not qualified to contest or that the votes cast for the 1st Appellant were thrown away as wasted votes. It is on this footing I would resolve these issues in favour of the Appellants.
Regarding issue No. 5, the case of Ogundipe vs. Akinloye (2002) 10 NWLR Part 775 p. 312 is quite pungent in it, where Akintan, J.C.A. (as he then was) held that the law is settled that where, owing to a pending relevant appeal, the hearing of a case could work injustice or constitute futile exercise in futility, prudence, if not common sense, dictates that the proper course of action open to the Court would be to stay or adjourn the case pending the determination of such an appeal with liberty to either side to apply for the hearing of the case to be resumed: See Shekoni vs. Ojoko (1954) 14 WACA 504; and Nalsa & Team Associates vs. N.N.P.C. (1996) 3 NWLR Part 439 p. 621 at 632. It was held therein that the learned trial Judge, failed to follow the above well established practice by not adjourning the claim before him until the appeal in the Supreme Court in the matter is determined.
It must be emphasised that an Election Tribunal has a dufy to do even-handed justice between the parties shorn of all unnecessary technicalities. The Tribunal should have aimed at doing substantial justice to unearth the truth of the matter. This should have, indeed, impelled the granting of a long adjournment to give time for the appeal to be heard. Further in the case of Nigeria Arab Bank Ltd. vs. Comex Limited (1999) 6 NWLR Part 608 p. 648, it was held thus:
“It is a highly esteemed principle of law and enshrined in our Constitution that in the administration of justice parties to a legal duel must each be accorded every opportunity of canvassing his case to the best of his ability within the rules regulating the procedure to achieve the end of justice. Fairness of a trial is demonstrated by the attitudinal behaviour of the presiding Judge in the course of trial towards a party. It is characterized by lack of prejudice or bias and open ended in such a way that any common man present in Court will easily attest to the fairness of the procedures.
In Otapo vs. Sunmonu (1987) 2 NWLR Part 58 p. 587 at 605, Obaseki, J.S.C. said:
“A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. When, therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice the concept of the rule of law cannot be established and grow in the society”.
It is said that if strict observance of a rule of practice will produce injustice then a Court of justice should tow the line of handing down justice than slaughtering it on the altar of technicalities, i.e., obeying the rule which is no longer an aid to administration of justice. The Court should ensure that justice is done and that rule of law prevails in all cases.
In conclusion I find this appeal meritorious, and, it should therefore be allowed. Accordingly, the same is hereby allowed. In consequence, the judgment of the trial Tribunal delivered on the 22nd July, 2009 in the Petition No. EPT/KD/HA/003/07 is hereby set aside. The said Petition is hereby remitted back to be tried by another set of panel that will be set up by the President of Court of Appeal which would afford equal opportunities to the parties to present their respective cases before it.
Now, regarding the cross-appeal filed by the Respondent in the main appeal in respect of which respective briefs of arguments of the parties were filed and exchanged, I do not consider it expedient to tackle the issues formulated therein since judgment of the trial Tribunal delivered on 22/7/2009 in Petition No.EPT/KD/HA/003/07 and upon which the said cross-appeal was founded had been set aside by this Court in the main appeal.
Accordingly, this cross-appeal is hereby struck out. I make no order as to costs.
JOSEPH TINE TUR, J.C.A.: I have read the judgment by my Lord T. N. Orji-Abadua, JCA, and I concur.
OBANDE OGBUINYA, J.C.A.: I had the opportunity of reading the leading judgment delivered by my learned brother, T. N. Orji-Abadua, JCA , and I agree.
Appearances
S. O. Omolola Mrs. With S. A. Akanni Esq, and H. Abdulrasheed (Mrs.)For Appellant
AND
Emeka Ogbonnaya Esq, for the 1st Respondent.For Respondent
