MICHEAL OBINNA I.C. IKOKU & ANOR v. HON. CHUDE ONYERERI & ORS
(2015)LCN/8007(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of October, 2015
CA/OW/EPT/HR/38M/2015
RATIO
ELECTION PETITION: WHETHER AN ELECTION PETITION AND AN APPEAL ARISING THERE FROM UNDER THIS ACT SHALL BE GIVEN ACCELERATED HEARING AND SHALL HAVE PRECEDENCE OVER ALL OTHER CASES OR MATTERS BEFORE THE TRIBUNAL OR COURT
Section 142 of the Electoral Act 2010, as amended, says:
“Without prejudice to the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, an election petition and an appeal arising there from under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court.” And paragraph 45 of the 1st Schedule to the Electoral Act, 2010 provides for enlargement or abridgement of time by the Tribunal or Court for doing any act or taking any proceedings, as the Tribunal or Court is saddled with powers to grant such prayers on such terms (if any) as the justice of the case demands, but subject to the provisions of Section 134 of the Electoral Act, which bars extension of time where the Petitioner fails to file his Petition within 21 days, or where the Tribunal or Court fails to deliver its decision within 180 days from the date of filing the Petition. per. ITA GEORGE MBABA, J.C.A.
COURT: JURISDICTION; THE SCOPE OF THE JURISDICTION OF THE APPELLATE COURT
The said provisions appear to derive their relevance from Section 15 of the Court of Appeal Act, 2004, which states:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question, which the Court of Appeal thinks and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the power of the Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
As was held in the case of Chinedu Enyinnaya Orji vs Sidney Ifeanyi-Chukwu Onyemere & Ors: CA/OW/EPT/HA/11/15, delivered on 4/9/2015:
“None of those wide powers of this Court (in Section 15 of the Court of Appeal Act 2004), suggests interfering with a matter or application still pending at the Lower Court, in which the Lower Court is yet to make its decision known, one way or the other” per. ITA GEORGE MBABA, J.C.A.
COURT: JURISDICTION; THE APPELLATE JURISDICTION OF THE COURT OF APPEAL OVER APPEALS FROM THE HIGH COURTS AND OTHER SUCH COURTS OF COORDINATE JURISDICTION
Of course, it is an elementary knowledge that, apart from our original jurisdiction in a complaint relating to presidential elections, this Court (Court of Appeal) has no original jurisdiction to hear and determine any case, at first instance, as it is seised with only appellate jurisdiction, over appeals from the High Courts and other such Courts of coordinate jurisdictions. See Sections 239 and 240 of the 1999 Constitution, as amended. See the case of Effiom vs Asuquo & Ors (2011) LPELR ? 4857 (CA), where Akeju JCA, on the invitation to invoke the powers of this Court under Section 15 of the Court of Appeal Act, 2004 said:
“An appeal is rather a rehearing of the original suit as gleaned from the printed record before the Court upon the complaint against the decision of the trial Court. The Appellate Court therefore is restricted to issues already determined by the trial Court. See Subern vs State (2010) ALL FWLR (pt 520) 1263; Balonwu vs Gov. Anambra State (2010) ALL FWLR (pt 516) 473. The powers of this Court under Section 15 of the Court of Appeal Act must be exercised upon the peculiarities of individual cases.”
per. ITA GEORGE MBABA, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. MICHEAL OBINNA I. C. IKOKU
2. ACCORD PARTY Appellant(s)
AND
1. HON. CHUDE ONYERERI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER, IMO STATE
4. RETURNING OFFICER FOR NKWERRE/NJABA/ISU/NWANGELE FEDERAL CONSTITUENCY. Respondent(s)
ITA GEORGE MBABA, J.C.A.(Delivering the Lead Ruling): Applicants filed this motion on 15/9/15, seeking the following reliefs:
?1. “An order granting the reliefs set out in the Applicants’ motion dated 3/7/2015 and filed before the Tribunal below on 4/7/2015 and therefore set aside the ruling of the National and State Houses of Assembly Election Tribunal Holden at Owerri, Imo State in Petition No EPT/IM/HR/11/2015:Michael Obinna I. C. Ikoku & Anor vs. Hon Chude Onyereri & 3 Ors as contained in the Ruling of their Lordships, Honourable Justices A. Y. Sanya, S. O. Falola and P. Idiong, made on 24/6/2015 for being a nullity and relist same on the cause list of the Tribunal.
2. An order transferring the Applicants’ Petition No. EPT/IM/HR/11/2015? to either panel 2 or 3 instead of the panel 1 of the Tribunal, constituted by their Lordships, Hon Justices A. Y. Sanya, S. O. Falola and P. Idiong for same to be heard on merits.
3. A consequential order mandating the appropriate panel of the Tribunal below to take necessary steps to commence hearing of the petition on the merits within 48 hours from the date of receipt of the Order of this court
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in this matter.
4. A consequential order of this Honourable Court directing the appropriate panel of the Tribunal to accord accelerated hearing to the petition and eschew all forms of objections while hearing the petition on its merits.
5. An order directing the appropriate panel of the Tribunal below to abridge the time within which the parties may call their witnesses and to adjourn the hearing of the Petition from day to day till conclusion of hearing.
6. A consequential order of this Honourable Court directing the appropriate panel of the Tribunal to deliver its Judgment in this Petition not later than 14/10/2015.
7. A consequential order of this Honourable Court awarding heavy cost against the Respondents in favour of the Applicants and adding that same must be paid before the Respondents can take further steps in the Petition at the Tribunal below. And for such further consequential order(s) as the Honourable Court may deem fit and expedient to make?”
Applicants listed the grounds for making the application, as follows:
1. “Where a court or tribunal raises an issue suo motu and resolves it one way or the other without
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affording the parties the opportunity to address it thereon, any decision predicated on that issue is a nullity.
2. A court or tribunal has competence to set aside its null decision without the aggrieved party going on appeal.
3. Where a Lower Court has refused to make an order which it ought to make, this court has the power to assume the position of the Lower Court and make that order.
4. The powers of this court to make, such order can be exercised notwithstanding that no notice of appeal has been filed challenging the decision of the court or tribunal.
5. Perceiving the decision of the tribunal below made on 24/6/2015 as a nullity, the Applicants, on 4/7/2015, filed a motion dated 3/7/2015, urging the tribunal below, inter alia, to set aside the said decision for being a nullity but the tribunal deliberately refused to hear the motion and rather adjourned same sine die, pending the decision of the President of the Court of Appeal in respect of the Applicants’ application for transfer of motion to a different panel of the tribunal.
6. Till date, the President of the Court of Appeal has not exercised his administrative power in
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connection with the application for transfer.
7. Time is greatly of essence to the hearing and determination of Applicants’ petition and the time constitutionally prescribed for the hearing of the Applicants’ petition shall be elapsing on or about the 14th day of October, 2015.
8. Where this application is not granted, the Applicants’ motion may not be heard until the 180 days presented for hearing the Applicants’ petition expires.”
The motion was supported by an affidavit of 21 paragraphs, deposed to by Ezechinyere Nwachukwu, a legal practitioner, one of the Counsel of the Applicants, with Exhibits, including the Ruling of the Tribunal, delivered on 24/6/2015, whereof the Tribunal struck out the petition, for incompetence, on the ground that the votes scored by the 1st Petitioner (who was sponsored by the 2nd Petitioner at the March 28, 2015 general elections) was not stated in the petition, and that that was a clear violation of one of the mandatory requirements of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2010. (See Exhibit A, particularly, pages 38 and 39 of the motion papers). Exhibit B was a copy of the petition, with the
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accompanying witnesses depositions and documents etc, while Exhibit C was the motion on Notice, filed by the Applicants as EPT/IM/HR/1M/2015 at the tribunal, for the tribunal to set aside its ruling striking out the petition and to relist the petition for hearing. It was filed on 4/7/2015.
The Records show that, on 5/8/2015, when the motion came up, Applicants’ Counsel, Alex N. N. Williams Esq. told the Tribunal:
“With the consent of the Petitioners, we have requested that this matter be transferred to another panel. We have already appealed to the Court of Appeal and the matter is coming up tomorrow for hearing.”
Mr. S. C. Imo, Counsel for 1st Respondent replied:
“I have seen the letter written to the Court of Appeal. The letter is frivolous and that grounds (sic) can go to Court of Appeal, and not by writing a petition to the President of the Court of Appeal.”
Counsel for 2nd to 4th Respondents, Prof. U. U. Chukwumaeze, agreed with the Counsel for 1st Respondent and added:
“On issue of law, I submit that this letter is a stay of proceeding. Assuming that the letter was written on the 27th July, 2015, that is more than three
5weeks from the event happening to when this letter was written. There is bad intention by the Petitioner. Nevertheless, it is now 9days when the purported letter?, then I believe the President of the Court of Appeal could have thrown it into the trash can.”
The Tribunal Ruled:
“We have considered the letter written by Petitioner’s Counsel to President of the Court of Appeal. The Counsel informed the Court that he has appealed the Ruling delivered by this Tribunal. Now that the issue before us is that we should transfer the matter to another Court, we are functus officio to open a case, which by our ruling disposed off (sic) the entire petition. We believe that we cannot hear this case until we hear from the Court of Appeal. Accordingly, this matter is hereby adjourned sine die, pending a directive from the President of the Court of Appeal.” See Exhibit D, on pages 153 to 154 of the motion papers before this Court.
The above formed the background facts to this application, before us, whereof Applicants want us to set aside, the Ruling of the Tribunal, striking out Applicants’ Petition on 24/6/2015, and to restore the petition and transfer
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it from the panel that struck it out, to another panel, and order that panel (the petition is transferred to) to hear it expeditiously, commencing the hearing within 48 hours of the Petition being transferred to it, and hear the Petition from day to day, to ensure that the hearing and determination of the Petition is done on the merits, before the expiration of the 180 days, constitutionally allowed, which will expire on 14/10/2015.
Applicants filed a written address on 29/9/2015 which their Counsel, E. C. Odunze Esq. adopted on 2/10/2015. The 1st Respondent and 2nd to 4th Respondents filed, separate, addresses on 2/10/2015, which their Counsel also adopted on 2/10/2015. The 2nd to 4th Respondents had earlier filed a counter-affidavit of 12 paragraphs, to which they exhibited Applicants’ letter to the President of the Court of Appeal seeking the transfer of their motion No EPT/IM/ HR/1M/2015 to another Tribunal for hearing and determination, alleging loss of confidence in the tribunal before which the motion was filed.
Applicants had predicated the motion on Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011 and on Section 142 of the Electoral
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Act, 2010, as amended, as well as on paragraph 45 of the 1st Schedule to the Electoral Act, and on the inherent jurisdiction of this Court. Arguing the application, Applicants’ Counsel raised two issues for the determination of the motion, namely:
i. Whether this Court can entertain this application? And
ii. Whether this Court can grant the reliefs sought here, in the immediate and enduring interest of justice?
He answered both in the affirmative. The Respondents, too, in their address, queried whether this court has jurisdiction to entertain this application and answered in the negative.
Order 4 Rules 3 and 4 of the Court of Appeal Rules 2011, state, as follows:
3. “The Court shall have power to draw inference of fact and to give any judgment and make any order, which ought to have been given or make and to make such further or other order(s) as the case may require, including any order as to cost.
4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondents’ notice has been given in respect of any particular part of the decision of the Court
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below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order on such terms as the Court thinks just to ensure the determination of the merits of the real question in controversy between the parties.”
Section 142 of the Electoral Act 2010, as amended, says:
“Without prejudice to the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, an election petition and an appeal arising there from under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court.”
And paragraph 45 of the 1st Schedule to the Electoral Act, 2010 provides for enlargement or abridgement of time by the Tribunal or Court for doing any act or taking any proceedings, as the Tribunal or Court is saddled with powers to grant such prayers on such terms (if any) as the justice of the case demands, but subject to the provisions of Section 134 of the Electoral Act, which bars extension of time where the Petitioner
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fails to file his Petition within 21 days, or where the Tribunal or Court fails to deliver its decision within 180 days from the date of filing the Petition.
Applicants have admitted that this application is not founded on any appeal before this Court, despite the wrong and erroneous claims of their Counsel at the Tribunal on 5/8/2015, who said:
“We have already appealed to the Court of Appeal and the matter is coming up tomorrow.”
In paragraphs 11 to 14 of the affidavit in support of this application, Applicants said:
11. Knowing the decision of the Honourable Tribunal as a nullity, the Applicants on 4/7/2015 filed a motion dated 3/7/2015 before the Honourable Tribunal urging it, inter alia, to set aside its ruling delivered on 24/6/2015 for being a nullity ?
12. When the motion came up on 8/7/2015, the Honourable Tribunal in its determination to further frustrate and forestall the hearing of the Applicants’ motion on the merit adjourned the hearing of the motion to 5/8/2015 (i.e. for about one month) and blatantly resisted all applications from the Applicants’ lead Counsel for an earlier date.
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13. Again, on 5/8/2015, the
?10 Tribunal below adjourned the hearing of the motion sine die pending the decision the President of the Court of Appeal on the Applicants’ application for transfer of their motion to a different Panel of the Tribunal.
14. That Applicants were shocked by the indefinite adjournment of the motion by the Honourable Tribunal and were utterly amazed when the Tribunal raised the issue of an appeal against its earlier decision of 24/6/2015, as they did not file any appeal against the decision of the Tribunal, dated 24/6/2015. We have obtained a copy of the proceedings of the Honourable Tribunal below dated 5/8/2015 and the same is herein annexed and marked Exhibit D.
In paragraph 15 of the affidavit, Applicants’ had tried to distance their Counsel at the Tribunal, Alex N. N. Williams Esq. from the recordings by the Tribunal that he (Counsel) had told the Tribunal at any time, that Applicants had appealed against the decision of 24/6/2015.
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With such brave acknowledgement and assertion that Applicants never appealed against the decision of the Tribunal, striking out the petition on 24/6/2015, what informed Applicants’ knowledge and assertion, as expressed
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in paragraph 11 of their affidavit in support of the application to set aside the Ruling, describing the Ruling – “the decision of the Honourable Tribunal as a nullity”!
It means Applicants had already sat on appeal over the decision of the Tribunal, reached on 24/6/2015, and had adjudged it, a nullity, and so did not bother to appeal against it! They only needed to apply to the Tribunal to set aside the “nullified” decision! And when the Tribunal was reluctant to set aside its decision, Applicants changed tactics and did not want the Tribunal to hear the application, again, as they would rather want another Panel to hear the application, and so requested (perhaps orally) for the transfer of the application to another Panel of the Tribunal! That request, was also by backed a letter to the President of the Court of Appeal, Exhibit A, attached to the counter affidavit by 2nd to 4th Respondents.
I think that was a terrible display or demonstration of blind arrogance and disdain for the decision of the Tribunal, and the arrogance bordered on contempt. It also portrayed a very poor understanding by Applicants and their Counsel of how to contest an
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unfavourable decision of a Court or Tribunal, where a party is dissatisfied; that remedy lies in appeal against that decision, not in taking the Law into one’s hands, tearing the judgment to shreds, or abusing the judge and condemning the judgment as a nullity, and then ordering the Court to set aside its decision, by offensive applications.
Even after bringing the application for the Tribunal to set aside its decision, Applicants would not allow the Tribunal to hear the motion, as they told the Tribunal to transfer the application to another Panel, and petitioned the President of the Court of Appeal to transfer the application to a different Panel to hear. They would not even stop at that, as they came to us, to sit over the decision of the Tribunal striking out their Petition, urging us reverse the decision and restore the Petition for trial, before another Panel of the Tribunal, but without filing an appeal against the Ruling!
I have never seen such a strange, absurd and contemptuous application, in my few years on the Appeal Court bench! And Learned Counsel for the Applicants, E. C. Odunze Esq., in his self-inflicted complaints, would not even
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listen to any voice of reason or counsel, on the need to predicate the application on an appeal, to be able to invoke the jurisdiction of this Court (being Appellate Court), to entertain the Application. Mr Odunze appeared to that believe Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011 , provides a leeway for this sort of application. He argued that this Court is bound by those provisions, to make order which ought to have been made or given by the Lower Court or Tribunal, notwithstanding that no notice of appeal or Respondent’s Notice had been given in respect of any part of the decision of the Court below, or by any particular party to the proceedings in the Tribunal; that this Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties. He relied on Abubakar vs Governor of Gombe State (2002) 17 NWLR (Pt 797) 533.
I am afraid, Applicants’ Counsel misconceived the whole essence of the law and circumstances under which Order 4 Rule 3 and 4 of this Court’s Rules, 2011 , can be invoked. The said provisions appear to derive their relevance from
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Section 15 of the Court of Appeal Act, 2004, which states:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question, which the Court of Appeal thinks and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the power of the Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
As was held in the case of Chinedu
?
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Enyinnaya Orji vs Sidney Ifeanyi-Chukwu Onyemere & Ors: CA/OW/EPT/HA/11/15, delivered on 4/9/2015:
“None of those wide powers of this Court (in Section 15 of the Court of Appeal Act 2004), suggests interfering with a matter or application still pending at the Lower Court, in which the Lower Court is yet to make its decision known, one way or the other?”
Appellate Court has to wait for the Trial Court to conclude its work, rightly or wrongly, before the Appellate Court can assume jurisdiction to intervene, and that on the invitation of an aggrieved party, upon an appeal. There is, therefore, no basis, whatsoever, for invitation to invoke Section 15 of the Court of Appeal Act, 2004, as the trial Tribunal is yet to take a decision on the pending application by the Applicants, the Tribunal, having only adjourned the motion, sine die, and Applicant have not appealed against that decision. And since there is no appeal against that decision, adjourning the motion sine die, or against the Ruling of 24/6/2015, striking out the Petition, this Court lacks competence to entertain this application and/or to make an order granting the reliefs set out in
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the Applicants’ motion dated 3/7/2015 and filed on 4/7/2015 and therefore set aside the ruling of the Tribunal, striking out the Petition, as prayed by the Applicants.
Again, as observed in the case of Chinedu Enyinnaya Orji vs Sidney I. Onyemere & Ors (Supra), we have to resist the invitation to assume jurisdiction in this application, just as we observed then:
“I think the learned Senior Counsel, with all his brilliance, was tempting us to taste the forbidden fruit, being a legal abomination for an Appellate Court to invade the Lower Court, disrupt its sitting and seize the case the Lower Court was doing or has done and adjourned for ruling, for the purpose of purporting to do it better, simply because a party complained about the style of the trial Court”
The situation in this case, at hand, is even worse, as it is a mere application to invoke the jurisdiction of this Court, to interfere or intervene in both a concluded matter and a pending motion at the lower Tribunal, but without an appeal against any of the said matters, to clothe this Court with requisite jurisdiction to pry into what the lower Tribunal did.
Of course, it is an
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elementary knowledge that, apart from our original jurisdiction in a complaint relating to presidential elections, this Court (Court of Appeal) has no original jurisdiction to hear and determine any case, at first instance, as it is seised with only appellate jurisdiction, over appeals from the High Courts and other such Courts of coordinate jurisdictions. See Sections 239 and 240 of the 1999 Constitution, as amended. See the case of Effiom vs Asuquo & Ors (2011) LPELR ? 4857 (CA), where Akeju JCA, on the invitation to invoke the powers of this Court under Section 15 of the Court of Appeal Act, 2004 said:
“An appeal is rather a rehearing of the original suit as gleaned from the printed record before the Court upon the complaint against the decision of the trial Court. The Appellate Court therefore is restricted to issues already determined by the trial Court. See Subern vs State (2010) ALL FWLR (pt 520) 1263; Balonwu vs Gov. Anambra State (2010) ALL FWLR (pt 516) 473. The powers of this Court under Section 15 of the Court of Appeal Act must be exercised upon the peculiarities of individual cases.”
?
?This Court, therefore, has no power, under
18 Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011 , or under its inherent jurisdiction, to set aside a valid decision of a Lower Court, unless upon an appeal against the said decision, where the Appellate Court has cause to fault the said decision of the Lower Court or Tribunal, after reviewing its decision.
I think Applicants belaboured under unpardonable confusion or ignorance in this application, struggling to locate the application under Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011 and Section 142 of the Electoral Act and paragraph 45 of the 1st Schedule to the Electoral Act, 2010, as amended , when the said laws envisage the existence of a valid appeal, to predicate such application.
The Section 142 of the Electoral Act and paragraph 45 of the 1st Schedule to the Electoral Act are, particularly, strange to this application, as there is no application or petition before us requiring accelerated hearing, since Applicants’ petition has since been struck out, and the motion at the Tribunal, to relist the same, stalled by Applicants, themselves, when they asked the Tribunal not to hear it, and to rather transfer it to another panel,
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while, at the same time, praying the President of the Court of Appeal to do the transfer.
The Tribunal was, therefore, right, in my view, to adjourn the application, sine die, pending the taking of action by the President of the Court of Appeal. And because Applicants never appealed against any of those decisions, to clothe this Court with jurisdiction to intervene, this application, therefore becomes an abuse of the process, as it is shopping for venue, and strayed into this Court, without an appeal.
The application is, accordingly, refused and is hereby dismissed, being an abuse of the process.
Applicants shall pay the cost of this application, assessed at One Hundred Thousand Naira only (N100,000.00), payable to 1st and 2nd Respondents.
PETER OLABISI IGE, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my Noble Lord ITA G. MBABA, JCA. I agree with his reasoning and conclusion.
FREDERICK OZIAKPONO. OHO, J.C.A.: I agree.
Appearances
E. C. Odunze Esq For Applicant
S. C. Imo Esq For 1st Respondent
Prof(Snr) U. U. For 2nd to 4th Respondent
Chukwumaeze
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Appearances
E. C. Odunze EsqFor Appellant
AND
1st Respondent:
S. C. Imo Esq
2nd To 4th Respondent:
Prof (Snr) U. U. ChukwumaezeFor Respondent
