MARY CHINELO CHIDEBELU & ANOR V. OBINNA CHRIS EMENAKA & ORS.
(2011)LCN/4880(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of November, 2011
CA/E/EPT/34/2011
RATIO
ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION IN AN APPEAL MUST FLOW FROM OR BE DISTILLED FROM THE GROUNDS OF APPEAL
It must always be borne in mind that the settled position of law the settled position of law is that Issues for determination in an appeal must flow from or be distilled from the grounds of appeal. In other words Issues for determination in an appeal are confined to and circumscribed by the grounds of appeal and any Issue not related to a ground or grounds of appeal is incompetent and liable to be struck out. See ETA V. ANWAN (2010) All FWLR (Pt. 546) 570 at 577; and ABDULLAHI V. NIGERIAN ARMY (2009) All FWLR (Pt. 500) 643 at 680. PER AYOBODE OLUJIMI LOKULO – SODIPE, J.C.A
JUSTICES:
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
1. MARY CHINELO CHIDEBELU
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA) – Appellant(s)
AND
1. OBINNA CHRIS EMENAKA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. HON. CHIEF JOE ISIAGU
4. BARR. CELESTINE OFOEGBUNAM
5. PEOPLES DEMOCRATIC PARTY (PDP) – Respondent(s)
AYOBODE OLUJIMI LOKULO – SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the National and State Houses of Assembly Election Tribunal, Awka Anambra State, (hereafter simply referred to as “the Tribunal”) dismissing Petition No. EPT/AN/HA/28/2011 as an abandoned Petition in a consolidated Ruling delivered on 9/9/2011.
The Appellants as Petitioners instituted Petition No.EPT/AN/HA/28/2011 (hereafter simply referred to as “the Petition”) on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent by the 2nd Respondent as the winner of the Anambra State House of Assembly election for Anambra East Constituency held on 26/4/2011. The 1st Appellant contested the questioned election on the platform of the 2nd Appellant. The Appellants averred to the effect that the 1st Respondent claimed to have been sponsored by the 5th Respondent and was put forward by the 2nd Respondent as the person that contested the questioned election as the candidate of the aforesaid 5th Respondent. The Appellants further averred that to the effect that the 3rd and 4th Respondents respectively were in addition to the 1st Respondent sponsored by the 5th Respondent as its candidates in the questioned election and would be affected by any decision rendered by the Tribunal in the Petition. The grounds of the Petition as set out in paragraph 10 thereof are: –
“(a) The return of the 1st respondent as the person elected at the State House of Assembly Election for Anambra East Constituency held on April 26, 2011, was invalid by reason of substantial non compliance w1h the provisions of the Electoral Act, 2010 in the conduct of the election.
(b) The 1st, 3rd and 4th respondents at the time of the election were not qualified to contest the election.
(c) The 1st respondent was not duly elected by the majority of lawful votes cast at the election.”
The prayers sought by the Appellants as set out in paragraph 22 of the Petition read thus: –
“(a) That it be declared that the House of Assembly Election for Anambra East Constituency Anambra State held on 26th April, 2011, is void for substantial non compliance with provisions, principles and spirit of 1999 Constitution and the Electoral Act 2010 in the conduct of the election.
(b) That it be declared that the 5th Respondent did not sponsor any candidate in the House of Assembly Election for Anambra East Constituency Anambra State held on 26th April, 2011.
(c) That it be declared that the House of Assembly Election for Anambra East Constituency Anambra State held on 26th April, 2011 is void as the 1st respondent at the time of the election was not qualified to contest the election.
(d) An Order setting aside the purported participation of the 1st, 3rd and 4th respondents in the House of Assembly Election for Anambra East Constituency Anambra State held on 26th April, 2011 as well as the return of the 1st respondent as the winner of the election.
(e) A declaration that the election at Ama-Enugwu I, 002, Ama-Enugwu II, 003, Ama-Isikwe 005, Iwuno Square I, 013, Iwuno Square I, 014 and Umuagama square 015 Polling Units of Enugwu Otu ward, Ilo Nnadi square 001, Oye Abata Square 002, College of Education II 004, Otakwu Square 006 Polling Units of Nsugbe Ward II, Umuokpoloba Square 006, Umuanwunu Square 004, Central School 001 Polling Units of Aguleri Ward II, Umuriabor II code 006 Ezi Agulu Otu Ward, Madonna Secondary School code 003 polling unit Otuocha Ward II, Amabegwu square 1 code 008 polling unit Nando Ward II and results returned thereat are void for reason of corrupt practices/manipulations perpetrated by respondents.
(f) A declaration that the House of Assembly Election for Anambra East Constituency Anambra State held on 26th April, 2011 is inconclusive by reason of the invalidity of the election at Ama-Enugwu I, 002, Ama-Enugwu II, 003, Ama-Isikwe 005, Iwuno Square I, 013, Iwuno Square II, 014 and Umuagama Square 015 Polling Units of Enugwu Otu Ward, Ilo Nnadi Square 001, Oye Abata Square 002, College of Education II 004, Otakwu Square 006 Polling Units of Nsugbe Ward II, Umuokpoloba Square 006, Umuanwunu Square 004, Central School 001 Polling Units of Aguleri Ward II, Umuriabor II code 006 Ezi Agulu Otu Ward, Madonna Secondary School code 003 polling unit Otuocha Ward II, Amabegwu square 1 code 008 polling unit Nando Ward II and non holding of election at Ilo-Abah C.P.S code 003 polling unit Nsugbe Ward 1.
(g) An order that fresh House of Assembly Election for Anambra East Constituency Anambra State be conducted OR IN THE ALTERNATIVE.
(h) An order that a re-run election for Anambra East Constituency Anambra State be conducted at Ama-Enugwu I, 002, Ama-Enugwu II, 003, Ama-Isikwe 005, Iwuno Square I, 013, Iwuno Square II, 014 and Umuagama Square 015 Polling Units of Enugwu Otu Ward, Ilo Nnadi Square 001, Oye Abata Square 002, College of Education II 004, Otakwu Square 006 Polling Units of Nsugbe Ward II, Umuokpoloba Square 006, Umuanwunu Square 004, Central School 001 Polling Units of Aguleri Ward II, Umuriabor II code 006 Ezi Agulu Out Ward, Madonna Secondary School code 003 polling unit Otuocha Ward 11, Amabegwu square 1 code 008 and Ilo-Abah C.P.S code 003 polling unit Nsugbe Ward 1.”
The 1st Respondent filed his Reply to the Petition on 12/6/2011. The 2nd Respondent filed his Reply out of time on 21/7/2011 and got an order of the Tribunal on 29/7/2011 regularizing the lateness in the filing of the Reply and deeming the said Reply as having been properly filed. The 4th Respondent filed his Reply to the Petition on 7/6/2011. The 3rd and 5th Respondents respectively did not file Replies to the Petition.
Being of the view that pleadings had closed in the Petition as at then, the Appellants by a letter dated 22/6/2011 applied for the issuance of pre-hearing notice and forms. The application made by way of letter was approved by the
Chairman of the Tribunal. However after the 2nd Respondent had procured the order of the Tribunal regularizing the lateness in the filing of its Reply, the Appellants brought another application for the issuance of pre-hearing notice and forms by way of motion on notice dated 2/8/2011 and filed on 3/8/2011. The 1st Respondent on 11/8/2011 filed a counter affidavit in opposition to the Appellants’ motion. The 2nd Respondent equally filed a counter affidavit in opposition to the Appellants’ motion. The Appellants filed further affidavits and written addresses in respect of their motion on notice. The 4th Respondent did not file any counter affidavit in the motion on notice brought by the Appellants. However on 16/8/2011 he filed a motion on notice in which he prayed the Tribunal to strike out the Appellants’ motion on notice and to dismiss the Petition as abandoned on the ground that the Appellants failed to apply for pre-hearing notice. The relevant portion of the motion on notice dated 2/8/2011 and filed on 3/8/2011 filed by the Appellants read thus: –
“(i) AN ORDER granting leave to the Petitioners to bring this application for the issuance of Pre-Hearing Notice outside the Pre-hearing session.
(ii) AN ORDER for issuance of Pre-Hearing Conference Notice as in Form TF 007 and Pre-Hearing information sheet as in Form TF 008 to the parties in the petition.”
The grounds of the application as set out in the motion are: –
“(i) The Electoral Act 2010 (as amended) requires that an application be made to the Tribunal for the issuance of Pre-Hearing Notices as in Forms TF 007 and TF 008 to the parties.
(ii) Leave of the Honorable Tribunal is required to make this application in accordance with the Electoral Act since this application is brought outside the Pre-Hearing session.”
The relevant portions of the 4th Respondent’s motion on notice dated 13/8/2011 and filed on 19/8/2011 read thus: –
“(a) An order striking out the petitioners’ motion on notice dated 2nd day of August, 2011 and filed on 3rd day of August, 2011 for the issuance of the pre-hearing notice as in form 007 and for (sic) TF 008 for being filed out of time.
(b) An order dismissing petition NO. EPT/AN/HA/28/2011, between Mary Chinelo Chidebelu & Anor V. Obinna Chris Emenaka & 4 ors, for failure of the Petitioners and/or the respondents to apply for the issuance of pre-hearing Notice as in Forms TF 007 and TF 008 and/or for want of diligent prosecution of the petition.”
The grounds of the application as set out therein are: –
“1. That the motion on notice for the issuance of the pre-hearing notice as in Form TF 007 and TF 008 was filed out of the time stipulated by the Electoral Act 2010 (as amended)
2. The Petitioners and Respondents failed to apply within 7 days after the close of pleadings for issuance of the pre-hearing notice as in Forms TF 007 and TF 008.2 (sic)
3. That pleadings as between the Petitioners and the 1st and 4th respondents closed on the 12th day of July, 2011.
4. That pleadings between the Petitioners and the 5rd respondent closed on 13th of June, 2011 while pleadings as between the Petitioners and the 2nd and 5th Respondents closed on or before the 13th of June, 2011.
5. That the Petitioners are not diligent with the prosecution of the petition NO. EPT/AN/HA/28/2011;
The parties in the Petition argued the two motions on notice hereinbefore identified on 24/8/2011. The Tribunal in its single ruling delivered in respect of the two motions on notice on 9/9/2011 dismissed the Appellants’ motion wherein they prayed for issuance of pre-hearing notice; while that of the 4th Respondent was granted. The Tribunal in dismissing the Appellants’ motion on notice held that “by the Record of the Tribunal, pleadings had closed between Petitioners and all the respondents on or before 17/6/2011 i.e. long before 2nd Respondent’s motion for extension of time filed on 21/7/2011”.
The Appellants being dissatisfied with the decision of the Tribunal upholding the motion on notice of the 4th Respondent and thereby dismissing the Petition, appealed against the ruling of the Tribunal by lodging on 28/9/2011 a Notice of Appeal dated 27/9/2011. The Notice of Appeal contains four grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –
“GROUND OF APPEAL
GROUND 1
The Honourable Tribunal erred in law when it held that the Petitioners/Appellants counter affidavit was contrary to the provisions of sections 88 and 89 of the Evidence Act and consequently struck same out.
GROUND 2
The Honourable Tribunal erred in law, in suo motu raising the propriety of the 2nd Respondent’s application for extension of time granted by it on 29/7/2011 and setting aside same without hearing from the parties.
GROUND 3
The Honorable Tribunal erred in view (sic) when it held that the petitioners Appellants (sic) Application for Issuance of Pre-hearing notice was incompetent and dismissed same.
GROUND 4
The Honorable Tribunal erred in law in dismissing the petitioners/Appellants Petition.”
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 26/10/2011 and filed on 27/10/2011. The Appellants filed Reply Briefs to the respective Briefs of Argument of the 2nd and 3rd Respondents. The Reply Brief filed in response to the Brief of Argument of the 2nd Respondent is dated 1/11/2011 and filed on 3/11/2011; while that in response to the Brief of Argument of the 3rd Respondent is dated 1/11/2011 and filed on 2/11/2011. All the Briefs filed by the Appellants were settled by O.A. Obianwu, Esq. SAN; A.C. Anaenugwu, Esq.; Hipo. C. Onwuegbuke, Esq.; G.B. Obi, Esq.; T.U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The Brief of Argument of the 1st Respondent dated 9/11/2011 and filed on the same date was settled by B.O. Iwunor, Esq.; that of the 2nd Respondent dated 31/10/2011 and filed on the same date was settled by Chief Ugo Ugwunnadi; and Emeka Mozie, Esq.; that of the 3rd Respondent dated 1/11/2011 and filed on the same date was settled by Mike Okoye, Esq.; that of the 4th Respondent deemed as properly filed and served on 9/11/2011 was settled by H.N.C. Moghalu, Esq.; and that of the 5th Respondent dated 28/10/2011 and filed on 30/10/2011 was settled by Clems Ezika, Esq.; Ernest Nwoye, Esq.; Victor Nwachukwu Esq.; Onwuemena Mmaduka, Esq.; and Kingsley Onunkwo, Esq. The appeal was entertained on 9/11/2011 and at the hearing; Mike Okoye learned lead counsel for the 3rd Respondent first argued the preliminary objection contained in the Notice of Preliminary Objection dated 1/11/2011 and filed on the same date by the 3rd Respondent. In this regard, learned counsel adopted and relied on the argument contained in the 3rd Respondent’s Brief of Argument in respect of the objection. Furthermore, all learned counsel for the parties adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in respect of their positions in the appeal.
In their Brief of Argument, the Appellants formulated two Issues as arising for determination in the appeal. The Issues read: –
“(i) Whether the Tribunal was right in law to have raised the issue of propriety of the 2nd Respondent’s application for extension of time granted by it on 29/7/2011 suo motu and setting same aside without hearing from the parties. (Ground 2 of the Appeal)
(ii) Whether the Tribunal below was right to have discountenanced the Counter Affidavit of the Appellants in opposition to the 4th Respondent’s application to dismiss the Petition and dismissed the Petition on the facts and circumstances of the petition. Grounds 1, 3 and 4)”
The lone Issue which the 1st Respondent formulated as arising for determination in the appeal in his Brief of Argument reads thus: –
“Whether the dismissal ordered by the lower Tribunal is sustainable.”
In his Brief of Argument, the 2nd Respondent formulated three Issues for the determination of the appeal. Issues 1 and 2 formulated in the Brief of Argument of the 2nd Respondent are ipsissima verba with the two Issues formulated by the Appellants. I therefore see not need to set them out again. Issue 3 which has no semblance with either of the two Issues formulated by the Appellants will however be set out and it reads: –
“The 2nd Respondent will also argue in this appeal whether or not the Appellants are not out of time in filing their appeal processes, rubbing (sic) this Court of Jurisdiction to hear this appeal.”
The two Issues formulated for the determination of the appeal in the Brief of Argument of the 3rd Respondent are ipsissima verba with those formulated by the Appellants; I will therefore not bother to set them out again.
The 4th Respondent formulated two Issues for the determination of the appeal in his Brief of Argument. I will re-produce only the first of the two Issues. This is because the second of the two Issues is ipsissima verba with the first of the two Issues the Appellants formulated save that the words “in law” were either deliberately or inadvertently omitted in that of the 4th Respondent. The first of the two Issues formulated by the 4th Respondents reads: –
“Whether the Tribunal was right to have dismissed the appellants’ petition as an abandoned petition.”
The two Issues for the determination of the appeal as formulated by the 5th Respondent in its Brief of Argument are ipsissima verba with Issues 1 and 2 in the 2nd Respondent’s Brief of Argument; the two Issues as formulated by the 3rd Respondent; and the two Issues formulated by the Appellants. I therefore do not see the useful purpose setting them out will serve.
As earlier stated, the 3rd Respondent argued a preliminary objection before the hearing of the appeal. The preliminary objection argued by the 3rd Respondent as set out in his Notice of Preliminary Objection dated 1/11/2011 and filed on the same date reads: –
“TAKE NOTICE that the 3rd Respondent will at the hearing of this appeal rely on the following preliminary objection to wit;
(1) Grounds (sic) of the grounds of appeal are incompetent and this Honourable Tribunal lacks the jurisdiction to hear and determine issue (ii).
The grounds of the objection as set out in the Notice of Preliminary Objection read thus: –
“(1) Ground 3 of the grounds of appeal is incompetent. (2) Issue (ii) formulated out of ground 3 by the appellants is incompetent.”
Dwelling on the preliminary objection in his Brief of Argument the 3rd Respondent having re-produced ground 3 of the Appellants’ grounds of appeal as set out in the record of appeal, submitted to the effect that the said ground complained only of ‘error’ without stating whether the ‘error’ was one of law or fact or misdirection. This the 3rd Respondent further said made the said ground of appeal to be vague, invalid and therefore incompetent. The 3rd Respondent said that the court cannot embark on a surgical exercise of separating the bad from the good. The cases of Bereyin v. Gbobo (1987) 1 NWLR (Pt. 97) 372 at 379 – 380; and Momoh International Ltd v. Romain & Sons Ltd (1993) 8 NWLR (Pt. 314) 746 at 754 were cited in aid of the submissions. In the light of the submissions concerning ground 3 of the Appellants’ grounds of appeal, the 3rd Respondent further submitted that any Issue distilled from the said ground was also incompetent. That Appellants’ Issue (ii) which was distilled from ground 3 in the circumstance was incompetent and should be struck out. Having also urged the Court to strike out Appellants’ ground 3; and Issue (ii), the 3rd Respondent also urged that the entire appeal be struck out as no useful purpose will be served by expending precious judicial time wading into issues formulated from the incompetent ground of appeal.
Dwelling on the preliminary objection of the 3rd Respondent in their Reply Brief, the Appellants submitted to the effect that the said objection lacks merit and should be dismissed. It is the Appellants’ submission that the essence of the complaint in ground 3 of the grounds of appeal when construed with its particulars is clear and unambiguous. That the ground is not misleading or incomprehensible, and that in any case, the 3rd Respondent has not alleged, let alone, shown that he was confused or has been misled by the ground. The Appellants said that they need not state whether the error complained of is one of law, fact, or misdirection for the ground to be valid. This is more so as the Court is not bound by the label put to it. The Appellants cited the cases of Garuba v. Kwara Investment Co. Ltd & Ors 21 NSCQR 412 at 429; Nigerian National Supply Co. Ltd v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526; and Aderounmu v. Olowu (2000) a NWLR (Pt. 652) 253 at 2os in aid of their submissions.
I do not think the preliminary objection of the 3rd Respondent requires any serious input on the part of the Court, given the submissions of the Appellants as highlighted above, and which submissions in my considered view have not only more than sufficiently answered the preliminary objection but also the hollowness of the said preliminary objection. Indeed, it is not a consideration of the instant appeal that will serve no useful purpose and thereby result in a waste of precious judicial time as submitted by the 3rd Respondent, but an elaborate consideration of the instant preliminary objection. Suffice it to say that in the light of the submissions of the Appellants in response to the preliminary objection and which submissions I am in total agreement with, I see no merit in the 3rd Respondent’s preliminary objection. Accordingly, the said objection is overruled and dismissed.
The appeal will be determined upon the first of the two Issues formulated by the 4tn Respondent for the determination of the appeal as the Issue necessarily invites this Court to look into the whole of the circumstances of the Petition in deciding on the correctness of the decision of the Tribunal dismissing the same as an abandoned petition.
The Appellants aside from arguing extensively the two Issues they formulated for the determination of the appeal in their Brief of Argument, also submitted that the Tribunal’s finding that the Petition was an abandoned Petition was without basis. In this regard the Appellants said that the Tribunal which dismissed the Petition as an abandoned Petition had previously accepted and approved their application by way of letter dated 22/6/2011 and filed on 24/6/2011 for the issuance of pre-hearing notice in the Petition. The Appellants expressed their surprise that the very Tribunal which had approved their application by way of letter, would later turn around to grant the application of the 4th Respondent and dismiss their Petition as an abandoned Petition. The Appellants submitted that it was no longer open to the Tribunal to hold as it did that their Petition was an abandoned petition having accepted an indeed having approved their letter dated 22/6/2011 and having also ordered the Secretary of the Tribunal to issue pre-hearing notices to the parties.
Dwelling on the Issue at hand, the 1st Respondent submitted that the Appellants cannot introduce the matter of their letter dated 22/6/2011 into the instant appeal without the leave of this Court. This is because the matter of the said letter was not canvassed before the Tribunal. In the event the Court did not agree with this, the 1st Respondent submitted the said letter was filed out of time as pleadings in the Petition closed on 17/6/2011. This is against the backdrop that this was the date the last of the Respondents’ Replies (i.e. 4th Respondent’s Reply) filed within time, was so filed. It was the further submission of the 1st Respondent that as both the letter dated 22/6/2011 and filed by the Appellants on 24/6/2011 and their motion dated 2/8/2011 and filed on 3/8/2011 were filed out of time, they were incompetent for the purpose of applying for the issuance of pre-hearing notice within the time stipulated by Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended). That in the circumstances the Appellants had abandoned their Petition and the Petition was liable to be dismissed as abandoned.
The submissions of the 2nd Respondent in respect of the Issue for the determination of the appeal as gathered from his Brief of Argument is to the effect that the Appellants’ Petition was not dismissed because their counter affidavit in response to the affidavit of the 4th Respondent was discountenanced by the Tribunal, but because the Appellants filed their prehearing processes out of time in contravention of the clear and mandatory provision of Paragraph 18 (1) of the First Schedule to the Electoral Act (supra). That the Appellants’ Petition must stand or fall upon the grant or refusal of their second motion filed on 3/8/2011 for issuance of pre-hearing processes. It was also the submission of the 2nd Respondent that the 4th Respondent’s motion of 16/8/2011 and all the processes relating or resulting from the said motion including the Appellants’ counter affidavit which was discountenanced (the crux of the Appellants’ complaint in their Issue 2) were surplusages. Again, having stated that the filing of two processes seeking the same relief, by the same party, in the same suit, amounted to an abuse of the process of court and which the court is under a duty to sanction, the 2nd Respondent submitted that as the Appellants had earlier applied for issuance of pre-hearing process on 24/8/2011 and repeated the same application on 3/8/2011, this was enough for the Tribunal to strike out the second application of the Appellants as it amounted to an abuse of court process. Stating that the Appellants were buoyed by the ruling of this Court in APPEAL NO: CA/E/EPT/31/2011 – UZOKWE V. ONYEKA, in bringing the instant appeal, the 2nd Respondent submitted that the case was not helpful to the Appellants and that the cases of Nwankwo v. Yar’adua 2010 Vol. 43 NSCQR and Okereke v. Yar’adua (200S) Vol. 34 (Pt. 11) (citations re-produced as contained in 2nd Respondent’s Brief of Argument) remain extant.
The 3rd Respondent having submitted in his preliminary objection that Appellants’ Issue (ii) was incompetent did not bother to make any submissions on the merit of the said Issue. He however dealt with Appellants’ Issue (i) and simply submitted that it was not sufficient for the Appellant to argue that the Tribunal did not give parties a hearing in respect of an issue raised before it. That before this lapse on the part of the Tribunal can lead to the reversal of the Tribunal’s decision; the Appellants must show that the error committed by the Tribunal occasioned them a miscarriage of justice and that the Appellants have failed to show that this is the situation in both their grounds of appeal and argument. The cases of Olubode v. Salami (1985) 2 NWLR (Pt.7) 282; and Imah v. Okogba (1993) 9 NWLR (Pt.316) 159 at 178 were cited in aid.
Dwelling on the Issue under consideration, the 4th Respondent having referred to portions of the ruling appealed against at pages 738, 745 and 747 – 748 of the record, submitted to the effect that the Tribunal was right in dismissing the instant Petition as an abandoned Petition. The 4th Respondent further said that the failure of the Appellants to appeal against the findings of the Tribunal in the aforementioned pages meant that they accepted the said findings. That the acceptance of the findings made by the Tribunal meant that the Appellants have accepted that pleadings closed on or before 17/6/2011 and that they were supposed to have filed their motion for issuance of prehearing notice within 7 days of 17/6/2011 which terminated on 24/6/2011.
In its Brief of Argument the 5th Respondent simply responded to the Issues formulated by the Appellants and urged that they be resolved against the Appellants and the appeal dismissed.
By the third of the three Issues the 2nd Respondent formulated for the determination of the appeal in his Brief of Argument, the 2nd Respondent challenged the competence of the Brief of Argument of the Appellants. The Appellants responded to the said Issue in their Reply Brief to the Brief of Argument of the 2nd Respondent. The response of the Appellants is in two parts. In the first part of their response, the Appellants urged that the 2nd Respondent’s Issue 3 in question, be struck out for being incompetent. This is because it does not arise from any of the grounds of appeal. In the second part of their response, the Appellants dealt with the 2nd Respondent’s Issue 3 on the merit.
I am in no doubt that Issue 3 of the three Issues formulated by the 2nd Respondent in his Brief of Argument clearly smacks of an objection to the Brief of Argument of the Appellants and accordingly has no place under Issues for determination of an appeal. It must always be borne in mind that the settled position of law is that Issues for determination in an appeal must flow from or be distilled from the grounds of appeal. In other words Issues for determination in an appeal are confined to and circumscribed by the grounds of appeal and any Issue not related to a ground or grounds of appeal is incompetent and liable to be struck out. See ETA V. ANWAN (2010) All FWLR (Pt. 546) 570 at 577; and ABDULLAHI V. NIGERIAN ARMY (2009) All FWLR (Pt. 500) 643 at 680.It is thus glaring that an Issue which challenges the competence of the Appellants’ Brief such as Issue 3 of the issues formulated by the 2nd Respondent, cannot be and is not an Issue worth the consideration of the Court. This is more so as the Appellants’ Brief before this Court never arose for consideration before the Tribunal in the motions it entertained talk less of the Tribunal pronouncing or not pronouncing on it. The law is settled as to how the competence of an appeal; and/or an Issue formulated for determination of an appeal; and a fortiori the brief of argument containing issues for determination of an appeal, can be challenged. See ODUNZE V. NWOSU (2007) All FWLR (pt.370) 1295 at 1315 and AGBAREH V. MIMRA [2008] 33 NSCQR 970 at 1017 – 1018. Accordingly, Issue 3 formulated by the 2nd Respondent in his Brief of Argument is hereby struck out for being incompetent.
In his Brief of Argument, the 1st Respondent amongst his many submission said that the Appellants could not dwell on the letter dated 22/6/2011 by which they applied for the issuance of pre-hearing notice before they filed their motion dated 2/8/2011 that was dismissed by the Tribunal. The 2nd Respondent made similar submission in his Brief of Argument.
I have before now, stated that the appeal will be determined upon the first of the two Issues formulated by the 4th Respondent. It should be borne in mind that it was upon the success of the application of this Respondent, that the Tribunal dismissed the Appellants’ Petition as an abandoned Petition. The first of the two Issues formulated by the 4th Respondent for the determination of the appeal has hereinbefore been re-produced in this judgment. I am of the settled view that the Issue admits of the consideration of the application made for issuance of pre-hearing notice by way of letter by the Appellants before filing the motion for the same purpose, in order to resolve the Issue as to whether the Tribunal was right in its decision dismissing the Petition as an abandoned Petition. Accordingly, I find the submissions on the letter made in the Appellants Brief of Argument to have been properly made, particularly in view of ground 4 of the grounds of appeal and 4th Respondent’s Issue 1 distilled from the said grounds of appeal.
I have earlier in this judgment stated that the 4th Respondent referred to portions of the ruling of the Tribunal in aid of his stance that the Tribunal was right in dismissing the Petition of the Appellants as abandoned petition. I will now set out the portion of the ruling referred to by the 4tn Respondent that I consider to be most germane. The portion of the ruling in question is at pages 744 -745 of the record and it reads thus: –
“…The 2nd Respondent filed a motion on notice dated 20/7/2011 and filed on 21/7/2011 for extension of time within which to file its reply and it also sought a deeming order. The said motion was served on the Petitioners on 26/7/2011 along with the 2nd Respondent’s reply. The Tribunal on 29/7/2011 granted the 2nd Respondent’s motion including the deeming order. It was pursuant to the grant of these orders that the Petitioners filed the instant application for issuance of prehearing notice.
Paragraph 18(1) and (2) of the First Schedule to the Electoral Act, 2010 (As Amended) provides thus:
(1) xxx
(NB: (2) not re-produce in the ruling
In the instance, going by the record of the Tribunal, pleadings had closed between the petitioners and all the Respondents on or before 17/6/2011 i.e. a long time before the 2nd Respondent’s motion for extension of time filed on 21/7/2011. In effect, the application for pre-hearing notice ought to have been brought by the Petitioners within 18/6/2011 and 24/6/2011. In (sic) follows that 2nd Respondent’s application for extension of time was heard and granted at a time when the time within which the Petitioners ought to have brought their application for pre-hearing notice had lapsed.”
The 4th Respondent has submitted that there is no appeal against the finding of the Tribunal as to when pleadings in the Petition closed, hence that the Appellants have also accepted that they were supposed to have filed their motion for issuance of pre-hearing notice within the period stated by the Tribunal.
The 4th Respondent would appear to have lost sight of the fact that the
Tribunal which held itself out as acting by what was in its records deliberately or inadvertently ignored the letter written on 22/6/2011 and filed at the Tribunal on 24/6/2011. This letter is at page 662 of the record and it can be seen on the letter that on 13/7/2011 the Chairman of the Tribunal had endorsed thereon the words “See, Application approved. Pls. issue.” The ruling of the Tribunal was delivered on 9/9/2011, yet the Tribunal in the ruling never made mention of the application for pre-hearing notice made by the Appellants by way of letter and which had been duly endorsed by the Chairman, talk less of taking it into consideration and pronouncing on its appropriateness in translating the Petition into pre-hearing stage despite its finding that the period the Appellants had for the purpose of applying for prehearing notice commenced on 18/6/2011 and ended on 24/6/2011 pleadings having closed on or before 17/6/2011. There is a world of difference between not doing an act at all, and doing an act by the wrong or unacceptable means. The Tribunal having not given any consideration to the letter at page 662 of the record (supra) clearly and definitely cannot be said to have found the letter by which the Appellants applied for the issuance of pre-hearing forms, inappropriate for that purpose. In the circumstances it becomes glaring that going by the reckoning of the Tribunal itself, the Appellants having made an application for the issuance of pre-hearing notice by way of the letter dated 22/6/2011 and filed on 24/6/2011 (which the Tribunal never pronounced to be incompetent), had thereby effectively complied with the provision of Paragraph 18(1) of the First Schedule (supra).
Without the Tribunal first declaring the letter at page 662 of the record as incompetent, there was no basis for it to have held or found that the Appellants did not bring their application for pre-hearing within 18/6/2011 and 24/6/2011, the Tribunal having initially found that pleadings in the Petition closed on or before 17/6/2011, Furthermore, confronted with the motion of the Appellants seeking for the same relief that they had asked of the Tribunal by way of their letter dated 22/6/2011 and filed on 24/6/2011 and which letter had been duly approved by the Chairman of the Tribunal, the Tribunal simply ought to have struck out the motion brought by the Appellants, while that of the 4th Respondent patently cannot be granted and should therefore have been dismissed.
In the final result the appeal is meritorious and is hereby allowed. The ruling of the Tribunal dismissing the Appellants’ motion for issuance of prehearing notice and granting the 4th Respondent’s motion for dismissal of the Appellants Petition as an abandoned Petition is hereby set aside. The Petition is hereby remitted to the Tribunal for completion of pre-hearing procedure and adjudication
I make no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I agree.
Appearances
O.A. Obianwu, SAN; with G.B. Obi and V.E. Okonkwo (Mrs.) For Appellant
AND
G.E. Ezeuko with B.O. Iwunor for the 1st Respondent
H.E. Nwachukwu for the 2nd Respondent
Mike Okoye with G.N. Onwusi for the 3rd Respondent
H.N.C. Moghalu with P.E Ikedigwe (Miss) for the 4th Respondent
Clems Ezika for the 5th Respondent For Respondent
