NWOSU UCHE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2019)

NWOSU UCHE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2019)LCN/13765(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of August, 2019

CA/OW/EPT/GOV/01/2019

RATIO

INTERPRETATION OF STATUTES: LITERAL INTERPRETATION: WHERE THE WORDS USED IN A STATUTE ARE NOT AMBIGUOUS

CLIENT-COUNSEL RELATIONSHIP: WHETHER THE COURT CAN INTERFERE IN SUCH A RELATIONSHIP

In ZAKIRAI V. MUHAMMAD (2017) LPELR-42349 (SC) AT 12-13 (E-C), the Supreme Court held that:

“To start with, the issue of representation by counsel is a matter of counsel-client relationship, which this Court cannot get involved in – see the case of Chief M.K.O Abiola V. F R N (1996) LPELR-40 (SC), wherein this Court, per Belgore, JSC (as he then was) said as follows- The best person to decide who represents him … is the Appellant, and that is his constitutional right. … Time honoured practice is for this issue of representation to be decided by counsel after consulting the Appellant, or the Appellant writing to intimate his choice of counselor … It is always a privilege, the matter of counsel-client relationship, and I do not believe it is right to involve the Court in this. What is more, where there is no averment that the authority of the counsel to conduct the case on a party’s behalf has been withdrawn, it is accepted that counsel had general or apparent authority to so do – see Afegbai v. A-G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

ELECTION PETITION: APPEAL FROM A DECISION IN A PER-ELECTION MATTER: WITHIN HOW MANY DAYS SHOULD THIS BE BROUGHT

An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

ELECTION PETITION: WHETHER ELECTION PTITION IS THE SAME AS OTHER CIVIL MATTERS

I have stated elsewhere in this judgment that election or pre-election matters are class of their own and that time is of the essence in Court proceedings in relation to election matters. I also said that election matters are different form ordinary civil matters. This being so, the provision of Section 233(3) of the Constitution does not apply to elections and election?s related matters. I am fortified by the decision in OBIH V. MBAKWE (1984) LPELR 2172 (SC) where Bello JSC (as he then was) of blessed memory held:

In the same vein as in the former Constitution, the 1979 Constitution made special provisions for the jurisdiction of Courts to hear and determine election petitions at the first instance and on appeal.Section 236 of the Constitutionconferred on the High Court of the state unlimited jurisdiction to hear and determine any civil or criminal proceedings, subject to the provisions of the Constitution.Section 237 then conferred jurisdiction on the competent High Court to deal with election petitions. The same distinction was manifested in the appellate jurisdiction of the Federal Court of Appeal and this Court. While appeals as of right were covered by Section 220(1) (a) to (d)and Section 213 (2) (a) to (d) in the Federal Court of Appeal and in this Court respectively, Section 220 (f)andSection 213 (2) (e) confers the right to appeal to the Federal Court of Appeal and to this Court in respect of election petitions. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

APPEAL: THE PERSON ENTITLED TO APPEAL AGAINST A MATTER OF A LOWER COURT

It is settled by plethora of cases that only a person aggrieved by the decision of the Court below can appeal against the decision. In ABACHA V. FRN (2014) LPELR-22014 (SC) AT 50-51 (E-C) the Supreme Court explained that:

“To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. See In Re: Alhaja Afusat Ijelu & Ors Vs. Lagos State Development & Property Corporation & Ors (1992) NWLR (Pt. 266) 414; (1992) LPELR 1464. The Court below was therefore correct in holding that in the instant con, the expression “person aggrieved” refers to any person whose legal right was invaded by the forfeiture order, whose financial interest was directly and adversely affected by the said Decree and whose right or property may be established or divested.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EVIDENCE: PROBATIVE VALUE: WHOSE DUTY IS IT TO ASCRIBE

The law is settled that evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court. The appellate cannot interfere with the evaluation of evidence and finding of fact based on the evaluation of evidence by the trial Court unless it is shown that the finding of fact is perverse. As explained by His Lordship, Niki Tobi, JSC, in IWUOHA & ANOR V. NIGERIAN POSTAL SERVICES LTD & ANOR (2003) LPELR-1569 (SC) AT 39-40 (F-A). a perverse finding is a finding which is merely speculative and not based on any evidence before the Court. It is an unreasonable and unacceptable finding that is wrong in law and completely outside the evidence before the trial Court. See also ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

1. NWOSU UCHE

2. ACTION ALLIANCE (AA) – Appellant(s)

AND

1. INDEPENDENT NATIONAL

ELECTORAL COMMISSION

(INEC)

2. IHEDIOHA EMEKA

3. PEOPLE DEMOCRATIC PARTY

(PDP) – Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The 1st appellant was the candidate of the 2nd appellant in the Imo State Governorship Election held on the 9th day of March, 2019. At the conclusion, the 2nd respondent was declared as the winner of the election. The appellants filed a joint petition to challenge the declaration of the 2nd respondent as the winner of the election. The petition was filed by Chief Adeniyi Akintola, SAN and some other counsel pursuant to the instruction of the 2nd respondent and which instruction was reconfirmed by the letter dated 10/6/2019 contained on pages 1340,volume 3 of the record of appeal.

By a letter dated 27/5/2019, the National Legal Adviser of the 2nd respondent instructed Chief Okey Ehieze to take steps to withdraw the name of the 2nd appellant from the petition. (See page 1223, Volume 3 of the record of appeal). Pursuant to the said instruction, Chief Okey Ehieze filed an application dated 30/5/2019 at tribunal on the same day for an order striking out the name of the 2nd petitioner from the petition on the grounds that:

1. The 2nd petitioner/applicant as

registered political party is in partnership with other political parties under the auspices of Coalition of United Political Parties (CUPP) which the 3rd respondent is also a member.

2. One of the aims or objectives of the coalition is to collaborate for peace progress and development of the country and the component states.

3. The present petition was filed by the 1st petitioner without the consent of the 2nd petitioner/applicant.

4. The need to withdraw the name of the applicant from this petition is in consonance with its desire to allow for peace, progress and development of Imo State in the line with the agreement of the Coalition of United Political Parties.?

After hearing both parties, the tribunal delivered a considered ruling, granted the application and struck out the 2nd appellant?s name.

Dissatisfied with the ruling, the appellants filed a notice of appeal containing ten (10) grounds of appeal. It is dated 26/6/2019 and filed on 27/6/2019.

The appellantsbrief of argument was filed on 12/7/2019. The respondents filed their separate and respective briefs of argument on 19/7/2019. The respondents

incorporated notice of preliminary objection to the appeal in their briefs. The 2nd respondent filed a separate notice of preliminary objection on 22/7/2019. The 3rd respondent also filed a separate notice of preliminary objection on 19/7/2019. The appellants filed separate replies to each of the respondentsbrief on 25/7/2019.

Chief Okey Ehieze filed a motion on notice on 22/7/2019 purportedly on the instruction of the 2nd appellant. I shall consider the application before the objections of the respondents. The motion is seeking an order striking out the name of the 2nd appellant (Action Alliance) from this appeal. The grounds of the application are:

1. The applicant is the political party that sponsored the 1st appellant in contesting the Imo State Governorship Election on the 9th day of March, 2019.

2. At the conclusion of the election and declaration of the 2nd respondent as duly elected, the 1st appellant filed a petition against the said declaration joining the applicant as the 2nd petitioner without the applicants consent.

3. On becoming aware of the pendency of the petition, the applicant instructed Okey Ehieze,

Esq. of counsel to withdraw its name from the said petition.

4. The said counsel accordingly on 30/5/2019 filed an application at the tribunal, seeking for an order to strike out the name of the applicant as 2nd petitioner in the petition.

5. On 24/6/2019, the lower tribunal in its well considered ruling granted the application and consequently struck out the name of the applicant as 2nd petitioner in the said petition.

6. The applicant being the beneficiary of the ruling of the lower tribunal appealed against is not interested in the present appeal filed by the 1st appellant and so should not have been made a co-appellant.

7. The applicant not being a person aggrieved by the decision appealed against cannot appeal against the said decision.?

The motion is supported by a 19 paragraphs affidavit sworn to by Barr. Kenneth Udeze, National Chairman of the 2nd appellant and filed along with the motion and a 20 paragraph affidavit sworn to by CHIEF OKEY EHIEZE titled AFFIDAVIT OF CHIEF OKEY EHIEZE IN OPPOSITION TO THE COUNTER AFFIDAVIT. The appellants filed a 26 paragraph counter affidavit to oppose the motion.

The learned counsel, DENWIGWE, SAN moved the motion. He relied on the two affidavits filed in support of the application and the exhibits attached thereto. He submitted that the counter affidavit does not deserve to be believed because it contains inconsistent positions and therefore unsafe to be relied on as in one breadth the deponent stated that the 2nd appellants name was withdrawn on his instruction and in another breadth he stated that he did not do so. He submitted further that the 2nd appellant is the beneficiary of the tribunals decision and therefore cannot file an appeal. He referred to EZEMBA V. IBENEME (2000) NWLR (PT.674) AT 74 (D). LAWRENCE V. PDP (2018) 5 NWLR (PT.1613) 464 AT 471. PDP V. SYLVA (2017) 5 NWLR (PT.1557) 74 AT 93 (C-F). He argued that an appeal being a continuation of the hearing at the lower Court, a party cannot come to the Court of Appeal and change his position and a party cannot appeal against himself. He referred to AMOBI V. NZEGWU (2014) 2 NWLR (PT. 1392) 510 AT 544-545. ASABORO V. PAN OCEANIC OIL CORP. NIG. LTD. (2017) 7 NWLR (PT.1563) 42 AT 57 (D-E). He urged the Court to grant the application and strike

out the 2nd appellants name from the appeal.

OWONIKO, SAN opposed the application. He submitted that there is nothing in the reply to the counter affidavit showing the authority of counsel to act for the applicant inspite of exhibit A6 attached to the counter affidavit. He further submitted that on the authority APC V. UMAR, Appeal No. CA/PH/198/2018, unreported judgment delivered by the Port Harcourt Division of this Court on 21/6/2018, the authority to arrange legal representation for the party lies with the National Legal Adviser of the party. He also submitted that the Court will go by the record as to who is a partys counsel. He referred to ZAKIRAI V. MUHAMMED (2017) LPELR-42349 AT 12-13 (SC). He contended that the argument proffered by DENWIGWE, SAN is open to only a party to the appeal and not to a counsel who does not represent any of the parties in the appeal.

Counsel to the 1st, 2nd and 3rd respondents did not oppose the application.

RESOLUTION:

For the consideration and determination of the motion I shall restrict myself to the processes filed and exchanged by the parties in respect of the motion. The processes

are the affidavit in support of the motion, the counter affidavit and the affidavit of CHIEF OKEY EHIEZE.

I have perused the said processes together with the submissions of counsel to both parties. I am of the firm view that the central issue in respect of the motion is whether the motion was properly filed on behalf of the 2nd appellant. I say so because counsel can only appear and file processes on behalf of a party pursuant to a firm and valid instruction to do so by that party.

From the facts deposed to by the parties in the affidavits before us there is a serious dispute on whether the 2nd appellant briefed or authorized CHIEF OKEY EHIEZE to file the motion. I find it necessary to state some of the depositions that are germane to the determination of the dispute in respect of the motion. The Chairman of the 2nd appellant stated in paragraphs 11-15 of the affidavit in support of the motion that:

11. The applicant being the beneficiary of the ruling of the lower tribunal now appealed against is not interested in the present appeal filed by the 1st appellant and so should not have been made a co-appellant.

12. As the National

Chairman of the applicant, I am aware that the party was not consulted either orally or in writing before the 1st appellant joined the applicant in his petition at the lower tribunal as 2nd appellant.

13. Similarly, the party was also not consulted before the present appeal was filed with its name as 2nd appellant and the party never authorized any counsel to represent her, either in the petition at the lower tribunal or in the present appeal.

14. I am aware that following the decision of the National Think-Thank Committee of our party to withdraw the partys name from the said petition, the National Executive Committee of the party through the office of the National Legal Adviser retained the professional services of Okey Ehieze, Esq. of counsel for him to file a motion to strike out the name of our party from the said motion.

15. The National Executive Committee of the party in conjunction with the National Think-Thank Committee have again authorized the appointment of Okey Ehieze, Esq. of the counsel, for him to represent the applicant in this appeal with a view to getting the name of the applicant struck out of this appeal. A copy of

his letter of appointment is exhibited herewith as exhibit A.

In reaction to the above depositions, the NATIONAL LEGAL ADVISER of the party stated in paragraphs 13-22 of the counter-affidavit that:

13. That on 24th June 2019, the lower tribunal delivered a ruling striking out the name of the 2nd appellant from the petition, hence necessitating this appeal.

14. I know as fact that after filling this appeal, the said Chief okey Ehieze has filed this application similar to the one filed at the lower tribunal seeking to withdraw the name of the 2nd appellant from this appeal.

15. That I have been shown the motion on notice filed by Chief Okey Ehieze and I know as a fact that the motion was neither authorized by the National Think-Thank Committee nor me as the National Legal Adviser of the party.

16. That I know as a fact that by the relevant provisions of the 2nd appellants Constitution, the National Chairman of the party and the National Secretary have no power to take decision on behalf of the party without the consent of the National Think-Thank Committee of the party.

17. That I know further as

a fact that by the relevant provisions of the 2nd appellants Constitution, the National Chairman and the National Secretary lack the vires/powers to instruct a lawyer to represent the party in any matter requiring legal expertise.

18. That as the National Legal Adviser, I am the competent person authorized to assign/instruct/brief counsel on behalf of the party to represent party in litigation.

19. That I have not briefed Chief Okey Ehieze to file the motion on notice or any other process in this appeal. He is merely a meddlesome interloper trying to truncate the progress of this appeal.

20. I know as a fact that the said Chief Okey Ehieze is an agent of the 3rd respondent (Peoples Democratic Party) deployed to be an albatross to this appeal just as he did at the lower tribunal.

21. I also know as a fact that Chief Okey Ehieze is at best a stranger to the 2nd appellant but conversely, he has acted in various capacities for the 3rd Respondent (Peoples Democratic Party) in very recent times. An example of such was when he withdrew a petition on behalf of the 3rd respondent. Attached and marked as exhibit A5 is a Certified True Copy of

the Record of Proceedings in the said petition.

22. I know as a fact that the only Counsel known to the party and authorized by the National Think-Thank Committee to prosecute this appeal is Chief Adeniyi Akintola SAN and his legal team. Attached and marked exhibit A6 is the letter by National Think-Thank committee of Action Alliance instructing Chief Adeniyi Akintola SAN to file an appeal against the ruling of the lower tribunal striking out its name from the petition.?

In his reaction to the above depositions, CHIEF OKEY EHIEZE stated in paragraphs 7-10 and 15-18 of his affidavit that:

7. I was properly briefed by the leadership of the applicant in writing to represent the party both at the lower tribunal and before this Honourable Court.

8. To the best of my knowledge and belief, Mr. Anaukyaa Mnenge Peter who deposed to the present counter affidavit is the same person who signed the motion for the withdrawal of the name of the applicant from the petition at the Court below.

9. The same National Legal Adviser later turned round to deny his acts claiming that he was deceived by the National Chairman.

10. To the

best of my knowledge and belief, the said National Legal Adviser who speak from both sides of the mouth is not worthy of belief by this Honourable Court.

15. I also know as a fact that by the Amended Constitution of the applicant, the National Chairman of the party is the head of the National Think-Thank Committee of the Party.

16. To the best of my knowledge and belief, exhibits A1, A2 and A3 to the 1st appellants counter affidavit were before the lower tribunal before the lower tribunal ruled that I was properly briefed in the matter hence I was allowed to move the motion before it.

17. Exhibit A6 to the counter affidavit is an afterthought and was made in reaction to my letter of appointment exhibited to the applicants motion as exhibit A.

18. I was informed by Chief Barr. Kenneth Udeze, the National Chairman of Action Alliance, this morning at about 10:00am at this Honourable Courts premises and I verily believed him that the said exhibit A6 was not authorized by the National Think-Thank Committee headed by him.?

It is clear from the above depositions that there is a dispute on who between

the NATIONAL CHAIRMAN and NATIONAL LEGAL ADVISER has the power to arrange for legal representation on behalf of the party. To resolve the dispute, it is to the Constitution of the party that we must turn.

Article 32 (1) of the partys Constitution states the powers and functions of the NATIONAL CHAIRMAN as follows:

1. NATIONAL CHAIRMAN

?The National Chairman of the party shall:

a. Summon and preside over the meetings of the National Executive Committee;

b. Provide effective leadership and direction to the Party;

c. Promote and defend the policies of the Party;

d. Be the principal spokesman of the Party;

e. Perform such other functions as may be directed by the National Leader, the National Think-Thank Committee and National Convention;

f. Exercise all powers conferred on him by Constitution;

g. Delegate such power as may be necessary to the Deputy National chairman.?

Article 32 (10) states that the NATIONAL LEGAL ADVISER shall:

a. Be a legal practitioner of not less than ten years post call experience unless otherwise waived by the party;

b. Render legal advice to the party

on all legal matters;

c. Prepare all legal documents and instruments for the party;

d. Present (sic) the party and its officers in all Court cases and other legal matters; and

e. Arrange for such representation on behalf of the party as may be directed by the National Think-Thank Committee.?

The law is sacrosanct that where the words used in a statute or Constitution are clear and unambiguous, the words must be interpreted in their literal meanings. From the clear wordings of Article 32 of the Party?s Constitution which is binding on all its members, the power to arrange representation on behalf of the party in all legal matters resides with the NATIONAL LEGAL ADVISER as may be directed by the NATIONAL THINK-THANK COMMITTEE and not with the NATIONAL CHAIRMAN. The National Chairman stated in paragraph 15 of his affidavit that the NATIONAL EXECUTIVE COMMITTEE of the party in conjunction with NATIONAL THINK-THANK COMMITTEE authorized CHIEF OKEY EHIEZE to file this motion. In the letter signed by him and the NATIONAL SECRETARY of the party, he stated that:

?Following the recommendation of the National Think-Thank

Committee of our party, you are hereby retained to represent our party; Action Alliance (AA) in the said appeal with a view to withdrawing the party?s name as the 2nd appellant since we did not brief any counsel to appeal on our behalf.

You are also hereby authorized to defend our party. Action Alliance in any appeal against our successful withdrawal from the petition pending at the Governorship Tribunal Owerri in EPT/OW/GOV/IM/02/2019.?

Chief OKEY EHIEZE stated in paragraphs 7 and 15 of his affidavit that he was briefed by the NATIONAL LEADERSHIP of the party and that by the Amended Constitution of the applicant, the NATIONAL CHAIRMAN of the party is the head of the National Think-Thank Committee of the party. The Amended Constitution of the party which allegedly makes the National Chairman the head of the Think-Thank Committee is not before this Court. By virtue of Article 14 of the 2nd appellant?s Constitution before this Court, National Leader of the party is the Chairman of the National Think-Thank Committee. It is the National Think-Thank Committee headed by the National Leader of the party that can direct the National

Legal Adviser to arrange for representation on behalf of the Party. There is no letter written by the National Legal Adviser instructing Chief Okey Ehieze to file this application. The letter dated 19/7/2019 written by the National Chairman and the National Secretary instructing Chief Okey Ehieze to represent the 2nd appellant in this appeal is invalid not having been written by the National Legal Adviser. The only valid letter of instruction is the letter dated 25/6/2019 signed by the National Legal Adviser by which Chief Adeniyi Akintola, SAN and others were instructed to file and prosecute an appeal against the ruling of the Tribunal. In ZAKIRAI V. MUHAMMAD (2017) LPELR-42349 (SC) AT 12-13 (E-C), the Supreme Court held that:

representation to be decided by counsel after consulting the Appellant, or the Appellant writing to intimate his choice of counselor … It is always a privilege, the matter of counsel-client relationship, and I do not believe it is right to involve the Court in this. What is more, where there is no averment that the authority of the counsel to conduct the case on a party’s behalf has been withdrawn, it is accepted that counsel had general or apparent authority to so do – see Afegbai v. A-G., Edo State (2001) 14 NWLR (Pt. 733) 425 SC.”

In the instant case, there is a challenge to the authority of counsel to file the motion seeking to strike out the 2nd appellant?s name from this appeal. Where a counsel has no authority to represent a party, he lacks the authority to file processes on behalf of the party. Any process filed without the requisite or apparent authority of the party must be discountenanced by the Court. Having considered the entire facts and depositions in the affidavits in support and against the application, I have no difficulty in coming to the conclusion that counsel was not authorized by the 2nd appellant to file the motion under

consideration. The motion is not properly before the Court. For this reason, the motion filed on 22/7/2019 seeking an order to strike the 2nd appellant?s name from this appeal is hereby discountenanced and it is hereby struck out.

PRELIMINARY OBJECTIONS:

The preliminary objections raised by all the respondents can be summarized as follows.

1. The appeal is incompetent for failure to seek and obtain leave of the tribunal to appeal against the interlocutory ruling subject of this appeal.

2. The 2nd appellant is not an aggrieved party, the decision being appealed against having been granted in its favour pursuant to its own application.

It was the 1st respondent that raised the issue of failure to obtain leave to file the appeal and also raised the following two issues for the determination of the preliminary objection:

1. Whether the appellants? appeal before this honourable Court is competent on account of failure to seek leave to appeal.

2. Whether this appeal as constituted is competent.

I shall adopt the two issues for the determination of the objections.

On the first issue, it is the

contention of the 1st respondent?s counsel that this appeal is incompetent because it is an interlocutory appeal on grounds of mixed law and fact for which leave to appeal ought to have been sought and obtained before filing the appeal. He referred to Section 241 of the Constitution. HOPE DEMOCRATIC PARTY V. INEC & ORS (2008) LPELR-4236 (CA). He further submitted that failure of the appellants to first seek and obtain the leave of the tribunal or this Court to file their appeal renders the appeal incompetent and liable to be struck out. He referred to:KHALIL V. YAR?ADUA (2004) ALL FWLR (PT.225) 11 AT 138. IFEDIORAH V. UME (1988) 2 NWLR (PT.74) 5; NNSC V. ESTABLISSMENT SIMA OF VADUZ (1990) 7 NWLR (PT.164) 526; OKEKE & ANOR V. OBINABO (2018) LPELR-44533 (CA). DR. ABUDULLAHI BADA ABDUL V. CPC & ORS. (2014) 1 NWLR (PT.1388) 299 AT 322.

In their response to the above submissions, the appellants? counsel submitted that the submissions of the 1st respondent?s counsel are misconceived in law as it is settled that election petitions are sui generis and by implication, appeals arising from election petitions are also sui generis.

Therefore, a party who wishes to appeal against an interlocutory decision of an Election Petition Tribunal does not need leave. Counsel referred to AWUSE V. ODILI (2003) 18 NWLR (PT. 851) 116 AT 169-170 PARAS C-A. ODON V. BARIGHA-AMANGE (NO.2) (2010) 12 NWLR (PT.1207) 13 AT 42-43 PARAS H-C. ALL PROGRESSIVE CONGRESS V. SENATOR IYIOLA OMISORE & ORS (2014) LPELR-24074 (CA) AT PAGE 14-15. DUKWE OGUGUA LOUIS V. INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC) & ORS. (2010) LPELR-4442, AT PAGE 11 PARAS (A-E). ANKPA & ORS V. MAIKARFI & ANOR (2008) LPELR-3776 (CA) PAGE 23-24 PARAS (A-F). ABUBAKAR V. YAR?ADUA (2008) 4 NWLR (PT.1078) 465 AT 524-525 PARAS (G-D).

RESOLUTION:

Apart from the decisions of this Court and the Supreme Court in the case cited by the appellants counsel, the Supreme Court again re-emphasized special and distinctive nature of election petitions and appeals emanating therefrom in APC & 1 ORS V. MARAFA in Appeal No. SC/377/2019 delivered on 24/5/2019. The Court per GALUMJE, JSC held that:

I am of the view that the only issue calling for determination of this preliminary objection is whether the appellant

requires leave to appeal in pre-election matters. Section 285(11) of the 1999 Constitution, as altered by the 4th Alteration Act provides as follows:

?An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.?

?In the same vein as in the former Constitution, the 1979 Constitution made special provisions for the jurisdiction of Courts to hear and determine election petitions at the first instance and on appeal.Section 236 of the Constitutionconferred on the High Court of the state unlimited jurisdiction to hear and determine

any civil or criminal proceedings, subject to the provisions of the Constitution.Section 237 then conferred jurisdiction on the competent High Court to deal with election petitions. The same distinction was manifested in the appellate jurisdiction of the Federal Court of Appeal and this Court. While appeals as of right were covered by Section 220(1) (a) to (d)and Section 213 (2) (a) to (d) in the Federal Court of Appeal and in this Court respectively, Section 220 (f)andSection 213 (2) (e) confers the right to appeal to the Federal Court of Appeal and to this Court in respect of election petitions. From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings with the con ofSection 267 of the Constitution

I am sure that the 1st respondent?s counsel is well aware of the firm and definite position of this Court and the Supreme Court that an appellant does not need leave to appeal in respect of pre-election and election petition matters, yet the learned counsel found it necessary to raise and argue the same

issue again. As observed by the Supreme Court in APC V. MARAFA (SUPRA), this type of practice puts too much pressure on the Court. Issue 1 is resolved in favour of the appellants.

On the 2ND issue, the contention of the respondents is that only a party who is aggrieved by a decision of a Court or tribunal can appeal against such decision. They referred to B.M NEXUS VENTURES LTD & ANOR V. UBA PLC (2017) LPELR-43118 (CA) AT 13-16. EBEBI & ORS V. DENWIGWE & ORS (2011) LPELR-4909 (CA). It is submitted that an aggrieved party is not someone in whose favour and at the instance of whom a decision of the trial Court was made. On who is an aggrieved party, they referred to SGBN V. LITHUS TORUNGBENEFADE AFEKORO & ORS (1999) LPELR-3082 (SC). PDP V SYLVA (2016) LPELR-42559 (SC) AT 19-22. OJORA V. AGIP (NIG) LTD (2005) 4 NWLR (PT. 916) 515. OMOTESHO V. ABUDULLAHI (2008) 2 NWLR (PT. 1072) 526 AT 543-544. It is further submitted that the 2nd appellant/applicant as the beneficiary of the tribunal?s decision and cannot file an appeal against the decision and that the 2nd appellant cannot appeal against itself. They referred to LAWRENCE V. PDP (2018)

LPELR-5 NWLR (PT. 1613) 464 AT 471. OKEAHIALAM & ANOR V. NWAMARA & ORS (2003) 12 NWLR (PT.835) 597. It is the contention of all the respondents and the applicant that the 2nd appellant not being an aggrieved person, the appeal is incompetent and liable to be struck out.

The appellants? counsel opposed the preliminary objections. He stated that the 2nd appellant?s name was struck out of the petition it had jointly filed with the 1st appellant despite the appellants having filed an affidavit of facts and a further counter affidavit in opposition to the grant of the application seeking to strike out its name from the petition at the lower tribunal. He Further submitted that from the peculiar facts leading up to this appeal, the 2nd appellant has a legal grievance which it can only ventilate by this appeal because it has been deprived of its right to prosecute the petition it filed with the 1st appellant at the trial tribunal and thus has a legal grievance and being so aggrieved is a proper appellant before this Honourable Court. He argued that the decision to grant the application to strike out the 2nd appellant?s name from the

petition at the trial tribunal is against the 2nd appellant?s interest.

RESOLUTION:

I find it necessary to state certain facts which are germane to the resolution of the objections and which are not in dispute between the parties. Those facts are:

1. The appellants filed a petition on 27/3/2019 challenging the election and return of the 2nd respondent as the winner of the gubernatorial election held in Imo State on 9/3/2019.

2. The petition was filed by Chief Adeniyi Akintola, SAN, Okey Amechi SAN, A. J. Owonkoko, SAN and other counsel.

3. By a letter dated 27/5/2019, the National Legal Adviser of the 2nd respondent instructed Chief Okey Ehieze to take steps to withdraw the name of the 2nd appellant from the petition. (See page 1223, volume 3 of the record of appeal)

4. By another letter dated 13/6/2019, The National Legal Adviser of the Party withdrew the instruction given to Chief Okey Ehieze. (See page 1351 of the record)

5. By a letter dated 17/6/2019 the National Chairman and National Secretary wrote another letter to Chief Okey Ehieze to disregard the National Legal Adviser?s letter of 13/6/2019.

The National Legal Adviser deposed to the affidavit in support of the motion filed by Chief Okey Ehieze to strike out the 2nd appellant?s name from the petition. (see pages 982-987 of the record)

7. The same National Legal Adviser deposed to a further counter affidavit contained on pages 1348 -1450 and further further counter affidavit sworn to on 17/6/2019 contained on pages 1334 -1337 to the 2nd petitioner?s application for striking out of the 2nd petitioner?s name from the petition.

?In paragraphs 6-12 of the counter affidavit sworn to on 14/6/2019 and filed on the same day, he stated that:

6. ?That I have not briefed the counsel who filed the motion for withdrawal of the petition or act on behalf of the party, Action Alliance.

7. That the only counsel known to the party and authorized to handle this petition is Chief Adeniyi Akintola, SAN, FCIArb.

8. That the Chairman of the Party misled me to think that the National Think-Thank Committee sanctioned the withdrawal of the party from the petition when it did not.

9. That the decision of the National Think Thank Committee of Action Alliance is attached

herewith and marked Exhibit ?AA1?.

10. That there was no time the National Think-Thank Committee agreed to withdraw the 2nd petition from the petition as I now found out.

11. That I repudiate all I had said in the affidavit supporting the motion under reference which was based on misrepresentation of facts and outright falsehood.

12. That the applicant to the aforementioned motion will not be prejudiced if the application is refused.?

?Chief Okey Ehieze filed an affidavit sworn to by him on 17/6/2019 wherein he stated that:

1. ?I am the Legal Practitioner engaged by the 2nd petitioner in this case and by virtue of my said position I am conversant with the facts herein deposed.

2. I was engaged by the 2nd petitioner on 27/5/2019 to represent her in his letter vide her letter to me through her National Legal Adviser, who acted on behalf of the party. The said letter is exhibited herewith as exhibit ?A?.

3. Based on the instruction of the 2nd petitioner as given to me by its National Chairman and Legal Adviser, I filed a motion to withdraw the 2nd petitioner from the petition.

4. To the

best of my knowledge and belief, the affidavit in support of the motion was personally signed by the said National Legal Adviser; Anaukgaa Nnenge Peter Esq. at the Tribunal Registry, and in company of the National Chairman of the Party, Chief Barr. Kenneth Udeze.

5. I was therefore embarrassed when the said Legal Adviser made an affidavit before the Honourable Court on 14/6/2019 wherein at paragraph 6 he denied briefing me to file the motion for withdrawal. The said affidavit is exhibited herewith as Exhibit ?B?.

6. Surprisingly on 17/6/2019, the same Legal Adviser who had in his affidavit denied ever briefing me turned round and served me with a letter purported to terminate my brief in this petition. A copy of the said letter is exhibited as Exhibit ?C?

7. In reaction to the said purported letter by the National Legal Adviser, the National Chairman of the 2nd petitioner and the National Secretary wrote another letter to me repudiating the aforesaid Legal Adviser?s letter. The said letter is annexed herewith as Exhibit ?D?.

8. The said National Chairman of the 2nd petition further informed me

through our telephone conversation on 17/6/2019 at about 4:30pm and I verily believe that:

a. The National Legal Adviser of the Party never obtained the consent of the National Think Thank of the Party before writing the said withdrawal or termination letter.

b. No meeting of the National Think Thank of the Party had been held since my appointment on 27/5/2019.

c. The Legal Adviser cannot act on his own but only on the instructions of the National Think-Thank led by the said Chairman.

9. I do not have any personal or pecuniary interest in this matter except in rendering my professional service to my client as duly briefed.

10. It is therefore in the interest of justice that the said letter be discountenanced.?

It is thus clear from the above facts that there was a serious dispute on the authority of Chief Okey Ehieze to represent the 2nd appellant and to proceed with the argument of the application filed by him for striking out the 2nd appellant?s name. It is clear that the 2nd appellant put up a serious opposition to the application. Inspite of the affidavits by the National Legal Adviser and opposition by the

appellants? counsel, the tribunal granted the application and struck out the name of the 2nd petitioner from the petition.

whose right or property may be established or divested.”

See also SGBN LTD V. LITUS TORUNGBENEFADE AFEKORO & ORS (1999) LPELR-3082 (SC) AT 25 (A-D). However, the application of that general principle of law must necessarily depend on the peculiar facts and circumstances of the particular case. In the instant case, the decision of the tribunal to strike out the name of the 2nd petitioner is not a decision in favour of the 2nd defendant. The decision to strike out the 2nd appellant?s name is clearly against the desire of the 2nd defendant to continue with their petition. It is my firm view that the 2nd appellant is an aggrieved party and is entitled to file an appeal against the decision of the tribunal to allow Chief Okey Ehieze to argue the application and striking out its name despite its opposition. The objection fails on that ground.

For the above reasons I find no merit in the objections of the 1st, 2nd and 3rd respondents. The objections are hereby overruled.

APPEAL:

From the ten (10) grounds of appeal filed by the appellants, the appellants? counsel raised the following three issues for determination:

?Whether or not the lower tribunal had jurisdiction to entertain the application to strike out the name of the 2nd petitioner/2nd appellant in view of the incompetence of said application. (Grounds 2, 4 & 5)

II. Whether the lower tribunal was right to have heard and determined the application to strike out the 2nd appellant?s name filed on 13th June 2019 having regard to the fact that the counsel who filed the said application was not properly before the lower tribunal and had no authority to proceed to argue the application. (Grounds 3, 6, 7 & 8)

III. Whether or not the lower tribunal was right to have granted the application in view of the law and the state of evidence before it. (Grounds 1, 9 & 10)?

The 1st respondent raised a sole issue for determination. The issue is:

Whether the learned justices of the lower tribunal were right in striking out the name of the 2nd appellant from the petition.?

The 2nd respondent raised the following issue for determination:

?Whether the lower tribunal was right to have heard and considered the motion on notice filed by the 2nd appellant and

struck out the name of the 2nd appellant (as the 2nd petitioner) from the petition.?

The 3rd respondent raised the following issues for determination:

I. ?Whether the motion on notice filed by the 2nd petitioner is competent. (Ground 2, 4, and 5).

II. Whether, having regard to the circumstances, the 2nd petitioner?s counsel had authority to file present and argue the said motion on notice. (Ground 3, 6, 7 and 8).

III. Whether, having regard to the circumstances, the said application ought to have been granted. (Ground 1, 9 & 10).?

I have perused the issues raised by counsel to all the parties along with the grounds of appeal. I find issue 3 raised by the appellants? counsel to be apt for the determination of this appeal. I am of the view that all other issues are subsumed under that issue. The issue is whether or not the tribunal was right to have granted the application in view of the state of the evidence before them.

The appellants? counsel argued that assuming that the counsel who filed the application in issue was properly before tribunal, the said application still ought to have been

dismissed by the tribunal because at the time the application was argued, the counsel no longer had the authority to act for and on behalf of the 2nd appellant and no longer had the authority of the 2nd appellant to proceed with the application. He submitted that the affidavit evidence and attached exhibits showed sufficient evidence before the tribunal that the National Legal Adviser was duly authorized to with draw the earlier instruction to Chief Okey Ehieze. He also argued that having found that the National Legal Adviser approbated and reprobated in respect of the application in issue, the lower tribunal ought to have dismissed the said application.

The 1st respondent counsel submitted that the application which is the bedrock upon which the appeal is predicated was filed by the 2nd appellant through its counsel, Chief Okey Ehieze, on the 30/5/2019 and in the name of the 2nd appellant, the 1st respondent never authorized the application and neither did any of the respondents authorize the said application. He further submitted that it is within the absolute right of a co-petitioner in an election petition to apply to have his name struck out from the

petition. He referred to ALLIANCE V. INEC & ORS (CA/I/EPT/GOV/20/2011). OBASANJO V. YUSUF (2004) 9 NWLR (PT.877) 144. He argued that the 2nd petitioner having applied to have its name struck out from the petition before the lower tribunal, the tribunal had a duty to give effect to the application. He urged Court to discountenance all the arguments of the appellants and all the authorities cited and relied upon them as they are inapplicable to the facts of this case.

The 2nd respondent counsel submitted that the assertion in the grounds of the application and the relevant affidavit evidence is that the petition was filed without the knowledge, consent or approval of the 2nd appellant (petitioner) whose name appears therein as the 2nd petitioner. Simply put, the said materials disclose that the petition was filed on a false premise that it was a joint petition when, truly, the name of the 2nd petitioner was falsely used. It is against the background of the faulty and false foundation upon which the petition was founded that the decision of the lower tribunal should be appreciated and the complaints of the appellants should be disregarded. It is

further submitted that the evidence of the two deponents that Imo State Chairman of the 2nd appellant co-signed the petition in the absence of the evidence of authorization of the national body of the 2nd appellant, is affirmation of the deposition that the 2nd appellant did not approve of the institution of the petition. He referred to ABEGUNDE V. O.S.H.A (2015) 8 NWLR (PT.1461) 314.

It is further submitted that the appellants presented no credible evidence, including the ?afterthought? affidavit evidence of the National Legal Adviser filed on 14/6/2019, which shows that the 2nd appellant gave its consent to the institution of the petition and affidavit of the National Legal Adviser which constitution perjury was rightly dismissed by the lower tribunal.

The 3rd respondent counsel submitted that the application to strike out the name of the 2nd petitioner is competent and the tribunal exercised its discretion judicially and judiciously when it granted the application as it is clear by the affidavit evidence of the 2nd petitioner that it did not consent and or authorize the filing of the election petition and that was a good ground to

apply to have its name struck out. He further submitted that the tribunal rightly found that the documents (Exhibits ?C?, OA1 and OA2) show that Chief Okey Ehieze was validly instructed to represent the 2nd appellant. Therefore Chief Okey Ehieze had the authority to file the application, to proceed to argue the application and indeed represented the 2nd petitioner.

RESOLUTION:

The crux of the appellants? complaints in this appeal is that the counsel who filed the application before the tribunal had no authority and instruction to proceed to argue the application at the time it was eventually argued and that the tribunal having found that National Legal Adviser approbated and reprobated in respect of the application ought to have dismissed the said application and when there was sufficient evidence adduced by the appellants in opposition of the application.

I have earlier stated some facts which are not in dispute between the parties. The most important is that the National Legal Adviser who wrote the letter by which Chief Okey Ehieze was briefed to take steps to withdraw the 2nd appellant?s name from the petition wrote

another letter by which Chief Okey Ehieze was de-briefed. It is also not in dispute that the National Legal Adviser who deposed to the affidavit in support of the application filed by Chief Okey Ehieze later deposed to a further counter affidavit wherein he stated that he was misled by National Chairman of the party to think that the National Think-Thank Committee sanctioned the withdrawal of the party from the petition when it did not. He specifically stated ?That I repudiate all that I had said in the affidavit supporting the motion under reference which was based on misrepresentation of facts and outright falsehood.?

The tribunal considered the affidavits evidence and the documents presented by the parties. At pages 1400-1401 of the record of appeal, the tribunal held that:

?We are also of the view that considering the affidavit evidence filed by the 2nd petitioner/applicant in this petition, the learned counsel for the 2nd petitioner/applicant Chief Okey Ehieze is lawfully engaged by the 2nd petitioner to bring this application. The National Legal Adviser of the 2nd petitioner/applicant had in many instances approbate and

reprobate as could be seen from the various letters he wrote to the learned applicant?s counsel and to this tribunal exhibited in this application. We are of the view that it will be unsafe for us to rely on such exhibits in determining this application. We are therefore of the opinion that by exhibits OA1 and exhibit OA2 annexed to the further affidavit of the 2nd petitioner which are letters from the National Chairman and National Secretary of the 2nd petitioner to the learned counsel for the 2nd petitioner/applicant Chief Okey Ehieze is validly representing the 2nd petitioner in this application.?

In a matter decided on affidavit evidence, the depositions stand or take the place of oral evidence.

(SC) AT 39-40 (F-A). a perverse finding is a finding which is merely speculative and not based on any evidence before the Court. It is an unreasonable and unacceptable finding that is wrong in law and completely outside the evidence before the trial Court. See also ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31.

In the instant appeal, the finding of the tribunal that Chief Okey Ehieze validly represented the 2nd appellant is not supported by the evidence on record and totally wrong in law. I say so because by the Constitution of the 2nd appellant, it is the National Legal Adviser upon the direction of the National Think-Thank of the party that has the power to arrange representation for the party in legal matters. The tribunal having found and rightly in my view that the National Legal Adviser approbated and reprobated on the instruction to Chief Okey EHIEZE, the only option opened to the tribunal was to ignore or discountenance the letters and affidavits deposed to by him which the tribunal did. The effect of the rejection of the depositions by the National Legal Adviser and the letters written by him is that Chief Okey Ehieze had no valid authority to

continue to represent the 2nd appellant. The reliance placed on exhibits OA1 and OA2 which are letters written by National Chairman and National Secretary of the party is erroneous and against the constitution of the party vide paragraph 32 thereof. By the Constitution of the party, it is clear that in all legal matters concerning the party, it is the National Legal Adviser as may be directed by the National Working Committee that arranges representation. Therefore, the letters written by the National Secretary are invalid and a breach of the party?s Constitution. Those letters could not constitute a valid instruction or authority for Chief Okey Ehieze to proceed with the argument of the motion. As at the time he moved the motion, he did not have the authority of the 2nd appellant to do so and should not have been granted audience by the tribunal. A counsel?s authority to act on behalf of his client is subject to the authority of the client to countermand, amend or withdraw his instruction. See AKANDE V. ODUNEWU & ORS (2015) LPELR-24683 (CA). ELIKE V. NWAKWOALA (12) SC. 301, (1984) LPELR-1118 (SC) AT 26 (D-F). In FGN & ANOR. V.INTERSTELLA COMMUNICATIONS LTD. & ORS. ?

(2014) LPELR-23295 (CA) AT 44 (C-D). When a counsel acts without the authority of his client, his action is not binding on the client. Based on the above, the tribunal ought not to have entertained the application at all let alone granting same on merit.

In conclusion, I find that this appeal has merit. It is hereby allowed. The ruling of the Governorship Election Petition Tribunal, Imo State, holden at Owerri delivered on 24/6/2019 in petition no. EPT/GOV/IM/02/2019 is hereby set aside. The motion filed by Chief Okey Ehieze on behalf of the 2nd appellant is hereby struck out. The name of the 2nd appellant is hereby restored to the petition. Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

HARUNA SIMON TSAMMANI, J.C.A,: I agree

FATIMA OMORO AKINBAMI, J.C.A.: I agree

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree

Appearances:

A. O AMAGWULA, ADEMOLA ABIMBOLA, ADAEZE ANAH, TORIOLA OLAJIDE, K. I. ONYEGBU and C. O. ONWUTUEBE for the Appellants.

D. C. DENWIGWE, SAN, with him OKEY EHIEZE ESQ, O. O. OKONKWO, C. J AHUMIBE, B. O. UGWU (Miss) and D. C. EBERE for the Applicant in the motion filed on 22/7/2019.For Appellant(s)

C. O. AHUMIBE with him S. O. SORRONNADI and S. U. OKPEOHA (Miss) for the 1st Respondent.

J. T. U. NNODUM, SAN with EMEKA OKPOKO, SAN, BODE OLANIPEKUN, SAN, C. H. NWUKE, DR. KEN. UBOECHI, DR. C. B. ANYIGBO, A. G OGUJIOFOR AND MAYOWA AJILEYE for the 2nd Respondent.

K. C. NJEMANZE, SAN, L. M. ALOZIE SAN, with NNEKA NKAMA and N. C. OHAKWE for the 3rd Respondent.

For Respondent(s)

Appearances

A. O AMAGWULA, ADEMOLA ABIMBOLA, ADAEZE ANAH, TORIOLA OLAJIDE, K. I. ONYEGBU and C. O. ONWUTUEBE for the Appellants.

D. C. DENWIGWE, SAN, with him OKEY EHIEZE ESQ, O. O. OKONKWO, C. J AHUMIBE, B. O. UGWU (Miss) and D. C. EBERE for the Applicant in the motion filed on 22/7/2019.For Appellant

AND

C. O. AHUMIBE with him S. O. SORRONNADI and S. U. OKPEOHA (Miss) for the 1st Respondent.

J. T. U. NNODUM, SAN with EMEKA OKPOKO, SAN, BODE OLANIPEKUN, SAN, C. H. NWUKE, DR. KEN. UBOECHI, DR. C. B. ANYIGBO, A. G OGUJIOFOR AND MAYOWA AJILEYE for the 2nd Respondent.

K. C. NJEMANZE, SAN, L. M. ALOZIE SAN, with NNEKA NKAMA and N. C. OHAKWE for the 3rd Respondent.For Respondent