OLAWALE OJO JAMES v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS.
(2013)LCN/6087(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2013
CA/EPT/AK/GOV/03/13
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA-JOMBO-OFO Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
OLAWALE OJO JAMES Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. DR. RAHMAN O. MIMIKO
3. LABOUR PARTY (LP)
4. ACCORD PARTY Respondent(s)
RATIO
THE PRINCIPLE OF CONSOLIDATION
The principle of consolidation is to hear cases with similar issues together with a view to ensure expeditious hearing of the cases and to save cost. See: Diab Nasir V. Complete Home Enterprises (Nig) Ltd (1977) 5 SC. PER ONYEMENAM, J.C.A.
DEFINITION OF A PETITION
In the case of JUSTICE PARTY V. INEC (2006) ALL FWLR (PT.339) 907 at 944 C- D; this Court following the decision of BUHARI v. OBASANJO (2005) ALL FWLR (PT.273) 1 OR (2005) 2 NWLR (PT.910) 241 observed as follows:
“….a petition is a declaration of the appellant’s right in which the reliefs sought are declaratory. The appellant is under a duty to adduce cogent and convincing evidence in support of his assertion. He has to succeed on the strength of his own case and not on the weakness in the case of the respondent. “
It is the law that failure to file defence will not entitle a party claiming declaratory reliefs to judgment. Being an equitable relief, it is granted at the discretion of the Court and only when the Court is satisfied that the party is entitled to the declaration sought. See the case of: SALAU v. PARAKOYI (2001) 1 NWLR (PT.695) 446 or (2000) LPELR CA/L/87/97. PER ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): Governorship Election was conducted to elect the Governor for Ondo State on 20th October, 2012 by the 1st Respondent. The 2nd Respondent was the candidate of the 3rd Respondent at the said election. Twelve other political parties also sponsored candidates for the said office at the election.
At the conclusion of the election the 2nd Respondent was returned as elected and declared as such by the 1st Respondent.
The Appellant was not a candidate at the said election and no vote was scored nor recorded for him by the 1st Respondent.
The Appellant, purportedly with the 4th Respondent were dissatisfied with the result as declared and the return of the 1st Respondent as the winner. By a Petition dated and filed on 8th November, 2012 they prayed for the following reliefs before the Tribunal:
(i) That it may be declared that the Governorship Election held on 20th October, 2012 in Ondo State wherein the 2nd Petitioner though validly nominated for the election but unlawfully excluded is invalid and unlawful.
(ii) An order setting aside and/or nullifying the Ondo State Governorship election held on 20th October, 2012 and the return of the 3rd Respondent, Dr, Rahman O. Mimiko as winner of the said election.
(iii) An order directing the 1st Respondent to conduct a fresh Governorship Election in Ondo State forthwith wherein the 2nd Petitioner shall be allowed to participate as the Governorship Candidate of the 1st Petitioner. See pages 6 – 7 of the Records
The case of the Petitioners at the lower court is that the 4th Respondent, a registered political party duly nominated the 2nd Petitioner (i.e the Appellant) for the Governorship Election held in Ondo State on 20th October, 2012 but the 2nd Petitioner was unlawfully excluded from the election by the 1st Respondent.
The 1st, 2nd and 3rd Respondents filed their Replies to the Petition. See pages 70 – 129, 130 – 162 and 164 – 199 of the petition. In their Replies, the three Respondents acting under paragraph 12(5) of the 1st Schedule to the Electoral Act raised Preliminary Objections. The Petitioners filed their Replies to the above and claimed inter alia that Suit No.: FHC/AK/CS/29/2012 had been withdrawn before the filing of the petition.
At the close of pleadings, the Respondents filed applications praying that the Petition be dismissed or struck out for incompetence. See pages 259 – 288 for the one filed by the 3rd Respondent and the petitioners’ written address against same on pages 289 – 298 of the record. The 2nd Respondent’s application to dismiss or strike out the Petition is at pages 299 – 359 of the record, while that of the 1st Respondent could be found at pages 379 – 411 of the record. These were the 1st set of objections against the Petition.
The petitioners on their part also filed an application in which they prayed that the various objections of the Respondents be taken along with the substantive petition. See pages 441 – 473 of the record. The respondents filed their various replies to this.
The 1st Petitioner on record (Accord Party) in its own case filed an application praying that its name be struck out from the petition on the ground that it neither authorized the filing of the petition nor the use of its name as it had resolved not to challenge the return and declaration of the 3rd Respondent by the 1st Respondent. See pages 550 – 562 of the record. The Respondents supported the 1st Petitioner’s application, while the 2nd Petitioner opposed same. See pages 563 – 513 and 594 – 606 of the record respectively.
The 2nd Petitioner filed a counter motion to challenge the 1st Petitioner’s motion asking that its name be struck out. This is at pages 659 – 674, while 1st Petitioner’s counter affidavit against same is at pages 675 – 691 of the record. All the Respondents on record opposed the 2nd Petitioner’s said motion. See pages 692 – 718 of the record.
The 2nd Petitioner also filed a motion praying for judgment at the interlocutory stage on the basis of the yet to be adopted written statement on oath of witnesses and documents thereto. The Respondents variously opposed the application.
All these applications with kindred applications filed in other cases were consolidated and heard together. It is the tribunal’s ruling on these various applications which was delivered on 4th February, 2013 that gave rise to this appeal.
The tribunal’s ruling and decisions regarding the various applications can be summarized, as hereunder: –
(i) On the Petitioner’s application that the Respondent’s various objections be heard alongside the petition the tribunal found the application unmeritorious and decided same against the Petitioners.
(ii) On the Respondents various objection to the competence of the petition, it found that the objections are meritorious and were allowed.
(iii) Specifically that the petition constitute a flagrant abuse of court process.
(iv) That the application of the 1st Petitioner for its name to be struck out from the suit was meritorious and same was granted.
(v) That the application for summary or interlocutory judgment was unmeritorious and accordingly dismissed.
(vi) That the petition in the entire circumstances ought to be struck out/dismissed and was accordingly so ordered.
The Tribunal in all ruled against the Appellant and accordingly dismissed the Petition. Dissatisfied with the decision of the Tribunal, the Appellant filed a Notice and Grounds of Appeal on 14th February, 2013 containing 29 Grounds.
The respective Counsel and Senior Counsel for the parties duly filed and exchanged their briefs and reply briefs of argument as the case required. By an application dated and filed 15th March, 2013, the 3rd Respondent sought and obtained leave of the Court to amend its brief of argument filed on 8th March, 2013. The application was heard and granted on 19th March, 2013. Whereupon the hearing of the appeal was adjourned to 20th March, 2013 to enable the Appellant file his reply brief to the 3rd Respondent’s amended brief of argument.
Before the appeal was heard on 20th March, 2013, Mr. E. Jegede, SAN, for the 2nd Respondent drew the attention of the Court to the 2nd Respondent’s objection filed on 15th March, 2013. He said the objection was argued at pages 8 – 11 of the 2nd Respondent’s brief. The learned Senior Advocate adopted and relied on the objection as made at pages 8 – 11 of the 2nd Respondent’s brief.
Mr. Osaze -Uzzi for the 1st Respondent indicated that the 1st Respondent filed a notice of preliminary objection on 6th March, 2013 which was argued at pages 5 – 6 of her brief of argument. Learned Counsel adopted the Notice of Preliminary Objection and relied on the argument on it as contained in the 1st Respondent’s brief.
Thereafter, Mr. Lana identified the following Appellant’s processes:
– Brief of argument dated and filed 1st March, 2013
– Reply brief to the 1st Respondent’s brief dated and filed 11th March, 2013.
– Reply brief to the 2nd Respondent’s brief dated and filed 11th March, 2013.
– Reply brief to 3rd Respondent’s amended brief dated and filed 20th March, 2013.
Reply brief to 4th Respondent’s brief dated and filed 11th March, 2013.
The Learned Counsel drew the attention of the Court to their objection raised at pages 1 – 2 of Appellant’s Reply brief to 3rd Respondent’s amended brief of argument, He adopted and relied on the argument on the objection at pages 1 – 2 of Appellant’s reply brief to 3rd Respondent’s amended brief, He subsequently adopted all the identified processes and relied on the arguments therein as their argument in the appeal. He urged the Court to allow the appeal. He pointed out that the Respondents’ Preliminary Objections were answered in the Appellant’s reply briefs to their respective briefs, He noted that the argument on the 2nd Respondent’s Preliminary Objection covered only grounds 1 – 5 which means grounds 6 – 9, 21 and 26 of the grounds of appeal were no longer objected to as no argument was proffered on them. Learned Counsel referred to case No. 3 in the additional authorities filed on 19th March, 2013 to submit that the 4th Respondent cannot argue its issues 3 – 8 as that will amount to approbating and reprobating.
He urged the court to dismiss all the Respondents’ Preliminary Objections, uphold the Appellant’s objection and allow the appeal.
Mr. Osaze -Uzzi adopted and relied on the 1st Respondent’s brief of argument dated and filed 6th March, 2013. He urged the Court to uphold the 1st Respondent’s Preliminary Objection and strike out the appeal or in the alternative to dismiss the appeal on the arguments on the issues raised.
Mr. Jegede, SAN, adopted and relied on the 2nd Respondent’s brief of argument dated and filed 8th March, 2013, the arguments on both the Preliminary Objection and issues raised, He urged the Court to uphold the objection and in respect of the main appeal, to dismiss same and uphold the ruling of the Tribunal.
Mr. Eleja, for the 3rd Respondent adopted and relied on the amended brief filed on 15th March, 2013 but properly deemed fifed and served on 19th March, 2013. He urged the Court to dismiss the appeal.
Reacting to the Appellant’s reply brief to the 3rd Respondent’s amended brief, Mr. Eleja submitted that the Appellant’s Preliminary Objection was an abuse of court process in that it is an attempt by the Appellant to raise the issue of the jurisdiction of the Court to grant the application for leave to amend 3rd Respondent’s brief again, He argued that the Appellant’s remedy at this stage is an appeal. He cited the cases of: U.N.N V. Orazulike Trading Coy (1989) 5 NWLR (Pt.119) 19 at 27 Paragraph F; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188 – 189.
On the merit of the objection, Mr. Eleja submitted that this Court has jurisdiction. See: First Bank of Nigeria Plc V. May Medical Clinics (2001) 9 NWLR (Pt. 717) 28 at 44. He urged the Court to dismiss the objection.
Mr. Ayenakin sought and was granted leave by the Court to insert an authority at the end of paragraph 4.13, at page 10 of the 4th Respondent’s brief. He thereafter adopted the 4th Respondent’s brief dated and filed 8th March, 2013, relying on the arguments therein to urge the Court to dismiss the appeal. Learned counsel referred to pages 13 -19, 557 – 561 and 611 – 628 of the record to submit that they are not blowing hot and cold. Further referring to the authorities cited by Mr. Lana, counsel submitted that they are not applicable.
In response, Mr. Lana for the Appellant submitted that the case of U.N.N. Vs. Orazulike is not apposite and that the Appellant’s Preliminary Objection is competent. He cited: Bello V. INEC (2010) 8 NWLR (Pt. 1196) 342 at 418 – 418. He urged the Court to discountenance all the Respondents’ Preliminary Objections and allow the appeal.
The issues formulated by the respective Counsel and Learned Senior Counsel in their respective briefs are as set out hereunder:
APPELLANT’S ISSUES:
(1) Whether the 1st Petitioner was a party to the petition on whose behalf only the solicitors on record could bring an application. Grounds (vi), (vii), (viii), (ix), (x), and (xxvii).
(2) Whether a solicitor who did not institute an action could validly bring an application on behalf of a party already represented by a solicitor when that solicitor has not been debriefed. GROUND (xi).
(3) Whether the lower tribunal could in the circumstances of this case hear and determine the Respondent’s Preliminary Objections and dismiss the petition in limine. GROUNDS (i), (xii) and (xxviii).
(4) Whether the main issue in the petition could be determined on the pleadings, Witnesses’ Statements on Oath, documents attached to the pleadings and the state of the law. GROUNDS (xiii) and (xiv).
(5) Whether the lower tribunal was fair to the Petitioners in their ruling. GROUNDS (v), (xv), (xvi), (xvii) and (xxv).
(6) Whether the petition constitutes an abuse of court’s process. GROUNDS (xviii), (xix), (xx), (xxi) and (xxix).
(7) Whether on the facts before the lower tribunal the Petitioners were not entitled to judgment. GROUNDS (xxii) and (xxiii).
(8) Whether the Petition is competent. GROUNDS (xxiv) and (xxv).
1ST RESPONDENT’S ISSUES;
(1) Whether the presentation of this Petition while Suit No. FHC/AK/CS/29/2012 was still pending was not an Abuse of Process?
(2) Whether the Petition was competent and liable to be dismissed in limine?
(3) Whether the Appellant is entitled to summary Judgment without taking or hearing any oral evidence or formally admitting any documents?
(4) Whether a Party who did not authorize the institution of an action ab initio is entitled to have its name struck out of the action.
2ND RESPONDENT’S ISSUES
(1) Whether having regard to the fact that Accord Party did not authorize the presentation of the petition in its name, the lower tribunal was not justified in striking out the name of Accord Party and all the paragraphs relating to Accord Party from the petition. (Grounds (vii), (viii), (ix), (x), (xi), (xxvi) xxvii).
(2) Whether the petition before the tribunal below was not incompetent and the lower tribunal not justified in dismissing it. Ground (vi), (xxvi), (xxviii).
(3) Whether having regard to the pending litigation in the Federal High Court, Akure in FHC/AK/CS/29/2012 and the concurrent prosecution of same along with the petition of the lower tribunal, the lower tribunal was not justified in dismissing the petition for being abusive of the judicial process. Grounds (xviii), (xix), (xx), (xxix).
3RD RESPONDENT’S ISSUES
1. Whether the Trial Tribunal was not right by entertaining the various Motions on Notice challenging the jurisdiction of the tribunal to hear the petition on diverse grounds and as contained in the preliminary objections incorporated in the Replies of the Respondents before hearing of the petition and accordingly dismissed the petition in limine and whether the appellant was not accorded fair hearing by the trial Tribunal. (Grounds iv, xxii, and xxviii).
2. Whether the Honourable Trial Tribunal was in error in its finding and decision that the case filed by the Appellant at the Federal High Court was subsisting as at the time the petition was filed and that the petition constitutes an abuse of Court process and accordingly dismissed same on that score. (Grounds xix, xx, xxi and xxix).
3. Whether the Honourable Trial Tribunal was right in its decision that Accord Party did not brief Michael Lana Esq to file the petition, that the petition was filed without Accord Party’s authorization and in upholding its right to withdraw there from and in consequently striking out its name and all paragraphs relating to it in the petition, (Grounds vi, vii, viii, ix, xx, xi, xxvi and xxvii.)
4. Whether the Honourable Tribunal was in error in refusing to enter judgment for the Appellant on the basis of the unadopted and contentious Witness’ Written Statement on oath and conflicting documents attached to the petition and the respective Replies of the Respondents. (Grounds xiii, xiv, xvii, xxii and xxiii).
5. Whether the Honourable Trial Tribunal was not right in dismissing the appellant’s petition on diverse grounds inclusive of lack of locus standi, failure to present same in compliance with the requirement of the law and whether the appellant was not accorded fair hearing during the hearing and consideration of the applications. (Grounds ii, xv, xvi, xviii, xxi, xxiii and xiv).
4TH RESPONDENT’S ISSUES:
(i) Whether the 1st Petitioner was a party to the petition on whose behalf only the solicitors on record could bring an application. (Grounds (vi), (vii), (viii), (ix), (x) and (xxvii).
(ii) Whether a solicitor who did not institute an action could validly bring an application on behalf of a party already represented by a solicitor when that solicitor has not been debriefed. (Ground xi).
(iii) Whether the lower tribunal could in the circumstances of this case hear and determine the Respondents’ Preliminary Objections and dismiss the petition in limine. (Grounds i, xii, and xviii).
(iv) Whether the main issue in the petition could be determined on the pleadings, witnesses’ statements on oath’ documents attached to the pleadings and the state of the law. (Grounds xiii and xiv).
(v) Whether the lower tribunal was fair to the petitioners in their ruling. (Grounds v, xv, xvi, xvii and xxv).
(vi) Whether the petition constitutes an abuse of court’s process. (Grounds xviii, xix, xx, xxi and xxix).
(vii) Whether on the facts before the lower tribunal, the petitioners were not entitled to judgment. (Grounds xxii and xxiii).
(viii) Whether the petition is competent, (Grounds xxiv and xxv).
Before deciding on the issues upon which the resolution of this appeal shall stem or deciding on the issues, I shall first determine the various Preliminary Objections.
On the 1st Respondent’s objection; the 1st Respondent’s grounds of objection are as stated hereunder:
(i) “They are repetitive, verbose and argumentative contrary to the Rules of this Honourable Court. They are therefore incompetent.
(ii) Further and/or in the alternative, ground (xxv) (page 842 of Record) of the Notice of Appeal is said to be encompassed by both issues 5 and 8 (see pages 3 – 4 of the Appellant’s brief). While it is settled that several grounds can constitute one issue, the reverse cannot be the case, as one ground cannot constitute or encompass more than one issue. The ground (xxv) dealing with the dismissal of the Petition as well as issues 5 and 8 dealing with the “fairness” of the tribunal to the Petitioners and the competence of the Petition respectively, are incompetent and should be struck out accordingly.
(iii) In addition, grounds (ii), (iii), (iv) and (xxvi) are not covered by any of the issues for determination identified by the Appellant at pages 3 – 4 of his brief, while grounds (xxi) and (xxix) are the same and therefore repetitive. Any or all arguments thereon should accordingly be discountenanced and struck out.
(iv) Finally on this point, the issue of whether the parties in the Federal High Court case and the Petition are the same, (Ground (xx) at page 839-840 of the record) is a question of fact and not law as postulated by the Appellant in Ground (xx). A finding of fact cannot crystallize into an error of law merely because the Appellant so brands it (Emenike V. PDP (2012) 12 NWLR (Pt.1315) 556 @ 589 – 590).”
It was further contended on ground 4 that the particulars thereof have no bearing with the Ground of Appeal. The essence of particulars he argued, is to elucidate and advance reasons for complaint in the ground of appeal. They are intended to highlight the complaint in the ground and must therefore be in harmony and compatible with the ground. Where they do not serve this purpose and do not complement the ground, it becomes incompetent. Mark v. Abubakar (2009) 2 NWLR (Pt.1124) 79 @ 133-134; Shanu v. Afribank (2000) 17 NWLR (Pt.795) 185.
The 1st Respondent on her Preliminary Objection on ground 1, submitted in sum that the Notice of Appeal is incompetent and the whole appeal ought to be struck out. It was contended for the 1st Respondent that the Notice of Appeal contains no valid grounds of appeal and as such is incurably defective and a nullity. It was further argued, that the issues as distilled from the said invalid grounds are also incompetent. See: Aribo V. C.B.N (2011) 12 NWLR 133 @ 104 and 150.
Learned Counsel urged the Court to strike out the grounds of appeal along with the arguments thereon for being incompetent.
In response, the Appellant submitted that the contention of the 1st Respondent that the Appellant’s grounds of appeal are repetitive, verbose and argumentative contrary to the rules of this Court is misconceived. He maintained that none of the grounds of appeal is repetitive or verbose. He cited: Eke V Ibe (2009) All FWLR (Pt.488) 315.
On the contention that issues 5 and 8 are incompetent because the 2 arose from one single ground. The Appellant submitted that the objection is again misconceived as ground (xxv) was argued under issue 5 without link to issue 8.
The Appellants further denied that grounds (xxi) and (xxix) are same and therefore repetitive. He submitted that the 1st Respondent did not show how the grounds have embarrassed, misled or prejudiced her by reason of the manner the complaint in the ground was raised. He cited: Imam v. Sherriff (2005) 4 NWLR (Pt. 914) 80 at 134 – 135, G – F.
On the fact that Grounds (ii), (iii), (iv) and (xxvi) are not covered by any of the issues for determination. The Appellant urged the Court to discountenance that contention as it has been held that a Counsel does not need to state from which of the grounds of appeal the issue formulated has arisen and need not also cover all the grounds. He relied on: Akinkugbe V. Bucknor (2004) 11 NWLR (Pt.385) 652 at 664.
Furthermore, the Appellant maintained that the holding of the Tribunal raised in ground (xx) is one of law and not fact. He contended that the 1st Respondent’s argument that the particulars have no bearing with the ground of appeal is of no moment since it has been held that a ground of appeal need not necessarily have to be particularized once the ground has shown sufficiently the complaint being raised. He referred to Imam V. Sherriff (Supra) Page 177. Learned Counsel for the Appellant prayed the Court to discountenance the objection and hear the appeal on its merit.
RESOLUTION OF 1ST RESPONDENT’S OBJECTION
On ground one of the objection, I have examined the grounds of appeal and I do not agree with the 1s Respondent that the grounds are repetitive, verbose and argumentative. I do not also hold as correct, the position of the 1st Respondent that the Notice of Appeal contains no valid grounds of appeal. I therefore discountenance this ground of objection.
On ground two: It is trite that the Courts distaste the proliferation of issues for determination formulated from grounds of appeal. The rule is that a number of grounds could where appropriate be formulated into one issue flowing from them, but a ground of appeal cannot be split to give rise to several issues. Labiyi V. Anretiola & Ors (1992) 10 SCNJ 1.
At pages 3 – 4 of the Appellant’s brief of argument, it is clear that issues 5 and 8 are distilled from ground (xxv). This is not allowed in law. The Appellant is forbidden by the law to formulate two issues out of a ground of appeal. Since the Appellant has submitted issues 5 and 8 out of ground (xxv) for determination, the two issues are rendered incompetent, See: Amodu v. The Commandant P.C. Maiduguri (2009) 15 NWLR (Pt.1163) 75.
This ground of objection is upheld, Accordingly, I strike out issues 5 and 8 of the Appellant’s issues. Having struck out issues 5 and 8, it follows that the grounds from which they were distilled have become bereft of issue and therefore abandoned. Accordingly, grounds (v), (xv), (xvi), (xvii), (xxiv)(xxv) are deemed abandoned. They are hereby struck out.
In resolving ground three of the grounds of objection, Order 6 Rule 2(3), Court of Appeal Rules, 2011 provides that Grounds of Appeal must be concise, distinctly headed, numbered consecutively and not contain argument or narrative. I view that the purport of Order 6 Rule 2(3), Court of Appeal Rules, 2011 is that each ground of appeal shall differ from the other. It does not by any means imply that two grounds of appeal cannot relate to each other. In fact, two grounds of appeal can refer to the same issue but the complaints on them should differ, otherwise the said grounds will be held to be repetitive. See: Ayinla V. Adigun (1996) 1 CA (Pt.11) 131.
I have examined grounds (xxi) and (xxix) of the Appellant’s grounds of appeal, I am of the opinion that the two grounds of appeal refer to the same issue but the complaints on them differ, The two grounds cannot rightly be said to be repetitive in law.
A legal inference can be drawn between a writ of summons and a statement of claim on one hand and the grounds of appeal and issues for determination formulated in a brief of argument on the other hand. In the two, the later supersedes the former. The issues for determination in a brief of argument once distilled are considered to have displaced the grounds of appeal. Accordingly, arguments in the brief must follow the issues for determination and not the grounds. The issues must contain the substance of the grounds of appeal. It might contain less but cannot contain more than what have been complained of in the grounds of appeal. See: Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608.
From the above decision, it is permissible for the issues formulated from the grounds of appeal to contain less substance than those in the grounds of appeal but forbidden for the issues to contain more. Where the issues contain less, there will be excess grounds of appeal, In other words, there will be grounds of appeal not covered by the issues formulated. When that is the case’ as in the instant case, the entire grounds are not rendered incompetent at least for the simple reason that the law allows the substance content of the grounds of appeal in the issues to be less, rather, the grounds of appeal which are not covered by the issues formulated are deemed abandoned. This flow from the fact that the issues having been distilled superceded the grounds and any argument in the appeal from the brief of argument must flow from the issues and not the grounds. It follows also, that grounds (ii, iii, iv and xxvi) from which issues were not distilled in the instant appeal are deemed abandoned. If so abandoned have no utilitarian value to the Appellants and as such are liable to be struck out. Accordingly, I hereby strike out grounds (ii, iii, iv and xxvi) of the grounds of appeal.
From the foregoing, I uphold the objection on this ground in part.
Lastly on ground four, it is trite that mere assertion that a ground of appeal is based on “error in law” does not make it one if the errors particularized are no more than matters of fact. See: N.N.S.C. Vs. E.S.V (1990) 11 – 12 SC 209.
I have examined ground (xx) tagged by the Appellant as based on “error in law”. The Appellant’s complain therein is that the Tribunal was wrong to have held that the parties before the Federal High Court in the case that led to this appeal is same as the parties before the Tribunal. I am of the view that the complaint in ground (xx) is of fact and not law. A finding of fact cannot concretize to an error in law just because the Appellant has so tagged it. See: Ogbechie v Onochie (No.1) (1986) 2 NWLR (Pt.23) 484.
When a ground of appeal is based on facts alone, or mixed law and facts it could not be filed in this court without first seeking and obtaining leave of the court. See: Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718. Accordingly, once a ground of appeal is based on facts or mixed law and facts the jurisdiction of this court is ousted unless leave has been sought and obtained to file the ground, see: Ojemen v. Momodu 11 (1993) 1 S.C.N.L.R 188 at 206.Having resolved that ground (xx) is based on facts, and since no leave was sought and obtained before filing same, the said ground is incompetent and accordingly struck out. Issue 6 of the Appellant’s ground of appeal distilled from ground (xx) is also incompetent and is hereby struck out.
In all, the 1st Respondent’s Preliminary Objection substantially succeeds and is to that extent upheld.
The 2nd Respondent’s grounds of objection are that:
1. “Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 21 and 26 are either vague, nebulous, general, argumentative and offend against Order 6, Rule 2(3) and Rule 3 of the Court of Appeal Rules. Appellant has no locus to raise such grounds.
2. Issues 1 and 2 as framed and argued by the Appellant is in respect of the case of 4th Respondent who has not appealed.”
The learned senior counsel referred to Ground 1 of the Appellant’s grounds of appeal and Issue 3 of the issues distilled therefrom to submit that there is no correlation between Ground 1 of the Notice and Grounds of Appeal and Issue No.3. He urged the Court to deem Ground 1 abandoned and Issue 3 incompetent since it is not covered by any ground. He referred to: Nwagu V. Fadipe (2012) 13 NWLR (Pt. 1318) 547; Ogbe v. Asade (2009) 18 NWLR (Pt.1172) 106; Dakolo (2011) 16 NWLR (Pt.1272) 22. He added that Grounds 2, 3, 4 and 5 suffer the same plight as no issue was distilled therefrom.
Further, the 2nd Respondent submitted that Grounds 1 and 5 are not only vague and nebulous, but that they did not attack the substratum of the ruling of the Tribunal. He argued that the decision attacked by the Appellant is not stated. That the sweeping nature of the grounds make them vague and uncertain and as such liable to be struck out. Still on Ground 5, it was contended for the 2nd Respondent that the decision of the Tribunal complained against therein was directed to Mr. Lana, a Counsel and not a Party on record. It was therefore submitted that, Mr. Lana who was not a party required leave of the Tribunal or Court of Appeal to challenge a decision. See: Bello V. INEC (2010) 8 NWLR (Pt.1196) 342 at 382; Section 243 (a) (b) of the Constitution of the Federal Republic of Nigeria (as amended).
It was further submitted by the 2nd Respondent that issues 1 and 2 as framed from Grounds (vi), (vii), (viii), (ix), (x), (xxvi) and (xi), cannot be raised by the Appellant. The reason being that the issues recognized that the complaint was against “Accord Party”, the 1st Petitioner, whose name was struck out and who did not file an appeal.
Learned Senior Counsel urged the Court to uphold the objection and strike out issues 1 and 2 and the grounds upon which they are predicated which are Grounds (vi, vii, viii, ix and xxvii); and also Grounds (i, iv and v).
In response, Mr. Lana for the Appellant submitted that the 2nd Respondent’s argument that there is no correlation between Ground 1 of the Notice of Appeal and Issue 3 was erroneous. He noted that the Appellant in his Ground 1 complained about the circumstances and principles of consolidation; and paragraph 12(5) of the 1st Schedule to the Electoral Act.
He added that Ground 5 is not vague by reason that the decision attacked was not stated as the whole decision on said ground was quoted, Learned Counsel further contended that the decision complained and quoted in Ground 5 which is that the Tribunal struck out the Appellant’s motion for failure of Mr. Lana, his Counsel to submit the authority he referred to is not a decision against Mr. Lana but the Appellant and the ground equally is not vague.
On the contention, that the Appellant cannot raise Issues 1 and 2 being that the decision from which the two issues were distilled concern the 4th Respondent who was the 1st petitioner and who has not appealed against it. Mr. Lana submitted that the Appellant being a party to the Petition and having been affected by the said Order, the Appellant has the right to appeal as his right of appeal is against the decision of the Tribunal. He referred to Section 246 and 285 (7) and (8) of the 1999 Constitution; Elugbe v. Ommokhafe (2005) All FWLR (Pt.243) 629.
Learned Counsel urged the Court to discountenance the objection and hear the appeal on all the issues.
RESOLUTION OF 2ND RESPONDENT’S OBJECTION
The law is: Where no issue is formulated in respect of a ground of appeal, ground from which no issue has been distilled is deemed abandoned and must be struck out accordingly. See: Dakolo V. Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22 at 50.
I have carefully examined Ground 1 and Issue 3 of the Appellant’s Grounds of Appeal and Issues for the determination of this appeal. Ground 1 of the Grounds of appeal with its particulars is a challenge against the decision of the Tribunal for failure to abide by the law and rules guiding the procedure for the determination of consolidated suits. The Ground maintains that the striking out of the Petition subject matter of this appeal in limine is contrary to the principle that in a consolidated action, all suits so consolidated should be heard and determined on their merits without determining any half way as that is an utter destruction of the whole essence of consolidation. If this be the purport of Ground 1, in my view then, it has great correlation with issue 3. Therefore, it will not be correct to say that Ground 1 is bereft of an issue stemming therefrom and as such should be deemed abandoned. Rather, I hold that Ground 1 is competent to the extent that Issue 3 was distilled from it.
The Appellant did not make any response to the submission of the 2nd Respondent that Grounds 2, 3 and 4 of the Notice of appeal are deemed abandoned as no issue or issues were distilled from there. I had while resolving the objection of the 1st Respondent held that Grounds 2, 3, and 4 amongst others are deemed abandoned. I herein maintain that position.
It is settled that the Courts will always make the best they can, out of a bad or inelegant ground in the interest of justice. See: Ekpemupolo & 4 Ors v. Edremoda & Ors (2009) 3-4 SC. 56; Dakolo V. Rergane Dakolo (Supra).
Grounds 1 and 5 are not so inelegant or imprecise that they cannot be accommodated by this Court in the interest of justice. The grounds are couched in such a way that they relatively attack the ratio of the ruling of the Tribunal. I do not hold as correct the submission of the Learned Senior Counsel for the 2nd Respondent that the decision of the Tribunal attacked by Ground 5 was a decision against Mr. Lana as a Counsel. The decision which struck out the Appellant’s motion on notice for failure of Mr. Lana to submit an authority to the Tribunal was against the Appellant and has been rightly appealed against by Ground 5 of the Grounds of Appeal.
The Constitution of the Federal Republic of Nigeria (as amended), the law and practice in the administration of justice have vested in the aggrieved a right of appeal to a superior Court against any decision in respect of which he is aggrieved. See: Saraki v. Kotoye (1992) 11/12 SCNJ 26. This right is jealously guarded and preserved by our Courts. It is my view that the Appellant in the instant appeal who is a party to the Petition wherein 1st Petitioner’s name was struck out and who is affected and aggrieved by the striking out of the name of the 1st Petitioner/4th Respondent has a right under the Constitution to appeal against the decision.
Finally, the objection succeeds in part and is upheld to the extent I have decided herein.
Although, the 3rd Respondent did not file an objection, at page 4 of his brief, he noted that grounds ii, iii, iv, xxii, xxiv and xxvi are abandoned as no issue for determination was distilled therefrom. He cited: Sapo V. Sunmonu (2010) 11 NWLR (Pt. 1205) 374 at 390; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130.
I have examined these grounds referred to above. Grounds xxii, xxiv are not abandoned grounds. Issues 7 and 8 respectively, were distilled therefrom. Grounds xxii and xxiv are therefore competent. Grounds ii, iii, iv and xxvi have previously in this judgment been held abandoned. They remain struck out.
The Appellant in reply to the 3rd Respondent’s amended brief of argument raised an objection. Although, it was filed the same morning the appeal was heard, the 3rd Respondent did not raise any objection to it. I shall therefore consider the objection.
The Appellant urged the Court to set aside its order made on 19th March, 2013 being Order made without jurisdiction and therefore a nullity. He relied on Bello v. INEC (2010) 8 NWLR (Pt.1196) 342 at 418.
The Appellant contended that neither the Court of Appeal Rules nor the Practice Direction empowered this Court to amend a brief of argument.
He urged the Court to hold that what is validly before this court is 3rd Respondent’s original brief of argument.
In reply, Mr. Eleja said the objection which is an attempt to raise the issue of the competence of this Court to grant leave for amendment of a brief is an abuse of Court Process. He submitted that the remedy open for the Appellant is an appeal and not an invitation for the Court to set aside its order. He cited: U.N.N V. Orazulike Trading Coy Ltd. (1989) 5 NWLR (Pt.119) 19 at 27; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188 – 189.
On the merit of the objection, Mr. Eleja submitted that this Court has the jurisdiction to grant the amendment, He relied on: First Bank of Nigeria Plc V. May Medical Clinics (2001) 9 NWLR (Pt.917) 28 at 44.
He urged the Court to dismiss the objection.
On the reply brief, Learned Counsel submitted that the Appellant’s reply brief does not qualify as one within the rules of this Court. He referred to Order 18 Rule 5, and urged the court to strike out the entire reply brief. He cited B.M.I Ltd v. Wwormann Line (2009) 13 NWLR (Pt.1157) 149 at 187.
Mr. Lana submitted that the case of U.N.N V. Orazulike is not apposite as the issue of jurisdiction was not raised. He argued that the objection is competent; citing: Bello V INEC (Supra).
On Order 18 Rule 5, he submitted that the Appellant’s Reply brief is not a rehash of the Appellant’s brief. That the reply brief are all issues of law. Accordingly, he contended that the case of B.M.I Ltd v. Wwormann (Supra) is not apposite.
He urged the Court to discountenance all the Respondents’ Preliminary Objections, uphold the Appellant’s objection and allow the appeal.
RESOLUTION OF APPELLANT’S OBJECTION
Paragraph 45(1) of the 1st Schedule to the Electoral Act empowers the Court to take any proceedings on such terms as the justice of the case may require except otherwise provided for by any other provision of the schedule. I know not of any provision of the 1st schedule that prohibits the Court from granting leave for a party to amend a brief. The appellant did not draw the attention of this court to any. It follows that the court made its Order of 19th March, 2013 with jurisdiction and as such lacks the competence to set same aside. If the Appellant is aggrieved by the said order, his remedy lies in appeal.
Accordingly, I hold that the Objection lacks merit and it is struck out.
As for the status of the reply brief filed by the Appellant, it is not completely a rehash of his main brief. I shall therefore make use of it when necessary.
May I note that although the 4th Respondents did not indicate at the hearing of the appeal that she had objection neither did she adopt arguments in respect of any, she argued what was termed preliminary issues. This, I see as a subtle way of raising an objection indirectly. Accordingly, I discountenance the preliminary points.
From the determination of the different objections, the effect on the appeal is that Grounds ii, iii, iv, xx, xxv and xxvi of the Grounds of appeal are struck out for divers reasons already stated in this judgment. Also issues 5, 6, and 8 of the issues raised by the Appellant in his brief are struck out for earlier stated reasons in this judgment.
I have considered the issues raised by the parties. I accept the position of the 4th Respondent, the issues formulated by the Appellant though not pungent, will in any case determine the dispute in the appeal. Since the Appellant is the one complaining, to ensure his full grouse is considered, I shall determine the appeal based on the Appellant’s issues.
Having struck out Appellant’s issues 5, 6, and 8, the issues that are left for the determination of the appeal are issues 1, 2, 3, 4, and 7. The Appellant argued issues 1 and 2; 4 and 7 together respectively. I shall therefore resolve them as 3 issues in this order: Issues 1 and 2 as Issue 1, Issue 3 as Issue 2 and Issues 4 and 7 as Issue 3,
ISSUE 1
Whether the 1st Petitioner was a party to the petition on whose behalf only the solicitors on record could bring an application and whether a solicitor who did not institute an action could validly bring an application on behalf of a party already represented by a solicitor when the said solicitor has not been debriefed.
Mr. Lana, learned counsel for the Appellant referred to the Tribunal’s holding at the last paragraph of page 753 to the first paragraph of page 754 of the record. He submitted that neither the record nor the law support the above statement. He contended that by a letter dated 30th January, 2013 and acknowledged received by the Secretary to the lower tribunal at 14:28pm, the name, citation and copy of the law Report of the Supreme Court case of AMOO Vs. ALABI (2003) FWLR (PT.174) 198 AT 209 – 210 PARAGRAPHS G – B was forwarded to the Tribunal and minuted immediately by the Secretary to the Chairman of the Tribunal. See: Page 718 of the Records.
He submitted that it was wrong for the lower tribunal to have deliberately ignored and claimed ignorance of the decision of the Supreme Court in order to wrongly dismiss the Petitioners’ Motion dated 22nd January, 2013 without hearing same. He added that the law is trite that all applications must be heard before a final decision is made. AKPAN vs. BOB (2010) 17 NWLR (PT.1223) 421 AT 465 F – H and OVUNWO Vs. WOKO (2011) 17 NWLR (PT. 1277) 522 AT 546.
He contended that it was wrong for the Tribunal not to hear the Appellant’s objection before deciding on Olayinka Ojo’s application dated 19th January, 2013, Learned counsel referred to: AMOO Vs. AIABI (Supra) to submit that, this is not only a travesty of justice but a denial of fair hearing which makes the decision to strike out the name of the 1st Petitioner a nullity. See: OPARA Vs. N.C.S.B (2011) 8 NWLR (PT.1248) 1.
Mr Lana prayed the court to set aside the decision of the Tribunal striking out the name of the 1st Petitioner and all paragraphs referring to it in the exercise of its powers under Section 15 of the Court of Appeal Act. His ground being that the application of Olayinka Ojo is incompetent which therefore deprived the Tribunal of jurisdiction to entertain the same thereby making its decision a nullity. See: MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341.
The Learned Counsel also referred to Order 9 Rule 35 of the Federal High Court (Civil Procedure) Rules and Rule 27(4) of the Rules of Professional Conduct for Legal Practitioners 2007; to submit that since it is not in dispute that the procedure for change of Counsel was not followed nor the condition precedent for a new Counsel’s appearance fulfilled the motion on notice dated 19th January, 2013 filed by Olayinka Ojo is incompetent. He cited: Madukolu V. Nkemdilim (1962) 2 SCNLR 341.
Mr. Lana contended that the argument of Mr. Ojo at page 623 of the Record that Order 9 Rule 35(1) of the Federal High Court (Civil Procedure) Rules 2009 could only apply when a party sues or briefed a Legal Practitioner is fallacious. He urged that the rule must be followed once the person sought to be represented by another counsel is already a party before a court irrespective of the fact that such a party did not brief a counsel to institute an action on his behalf.
Furthermore, Learned Counsel for the Appellant argued that by Exhibit BB which the Tribunal relied upon, it was not a Legal Practitioner as defined by the Legal Practitioners Act that was briefed to strike out the name of the 1st Petitioner in EPT/OD/GOV/01/2012. He submitted that “Banjo Adenakin & Co” instructed by Exhibit BB is neither a Legal Practitioner nor Olayinka Ojo, Esq. He added that, “Banjo Adenakin & Co” not being a juristic person nor a Legal Practitioner could not make such application. He cited: SLB Communication Ltd V. NNPC (2011) ALL FWLR (Pt.583) 1902. Learned Counsel further argued that Olayinka Ojo, Esq., that filed the application was not the one instructed. Consequently, he submitted that the application filed by him was incompetent. He cited Moss V. Kenrow (Nig.) Ltd. (1992) 9 NWLR (Pt. 264) 207.
In the 1st Respondent’s reply to the Appellant’s Issue 1, Mr. Osaze-Uzzi outside dismissing Issue 1 as an academic exercise contended that the 4th Respondent is a corporate body acting through human beings. That the state chapter of the Party is not a separate entity, but a small part of a larger whole – the National body. He argued that the party and the substantive State Chairman was not in support of the petition. Also that the National Chairman, authorized by the National Executive Committee was present in court and deposed to affidavits which were not controverted in any way that the Party never authorized the presentation of the Petition, ab initio. For this, Learned Counsel urged the Court to hold that the tribunal was right in striking out the 1st Petitioner’s name, irrespective of the “Acting State Chairman’s” representations,
Mr. Osaze-Uzzi urged the court to resolve the issue in favour of the Respondents.
For the 2nd Respondent, it was submitted that the Tribunal acted within the law in granting the application of the 4th Respondent to have its name struck out of the petition. The learned senior counsel contended that there are adequate and unimpeachable materials before the Tribunal on the basis of which it exercised its jurisdiction to grant the 4th Respondent’s prayer to have its name struck out of the petition and for granting the consequential relief of striking out paragraphs of the petition in which the name of the 4th Respondent appeared. He drew the attention of the court to the following materials before the court which he deemed relevant. They are:
(a) The Better and Further Affidavit of Hon. Mohammed Lawal Nalado in support of the Respondent’s motion dated 19th January, 2013.
(b) Exhibits 1 and 2 attached to the affidavit referred to in (a) above. See: pages 611 – 617 of the record.
(c) Hon. Mohammed Lawal Nalado’s Additional Affidavit of 29th January, 2013 particularly, Exhibit BO A1. See: Pages 629 – 658 of the record.
(d) The physical appearance of the National Chairman of 4th Respondent, Hon, Mohammed Lawal Nalado before the Tribunal on 22nd January, 2013 and 29th January, 2013 to affirm the party’s position. See: pages 726 – 736 of the record.
(e) Letter dated 29th November, 2012. See: Page 163 of the record.
(f) Exhibit BB attached to the affidavit of Dr, Ajibola Falaye (Ondo State Chairman of 4th Respondent).
The learned senior counsel relied on: Oyewole V. Akande (2009) 15 NWLR. (Pt.1163) 119 at 148; Bulama v. Daggash (2004) 14 NWLR (Pt.892) 144 at 233; to urge the Court to hold that the Tribunal was right in striking out the name of the 4th Respondent.
On the argument and submission of the Appellant in paragraphs 3.05-3.24 of his brief, Order 9 Rule 35(1) of the Federal High Court Rules 2009 and the cases relied, it was submitted for the 2nd Respondent that the cases cited are irrelevant to the subject matter of the appeal. It was further submitted that for Order 9 Rule 35(1) (Supra), the operative words are: “a party …who sues” and “…..his Legal Practitioner”. The 2nd Respondent therefore submitted that before this rule can apply, a party must have sued and he must have briefed or instructed a Legal Practitioner to act on his or her behalf.
On Rule 27(4) of the Rules of Professional Conduct for Legal Practitioners 2007 (RPC), the 2nd Respondent submitted that the rule is not applicable given the facts and the circumstances of this case. He contended that the operative words in the RPC Rule 27(4) are “a person is already represented by another lawyer”.
It was argued that since Mr. Lana and his team of lawyers was not engaged by the 4th Respondent and therefore not representing her, the question of Olayinka Ojo, Esq., giving prior notice to Michael F. Lana does not arise.
Furthermore, it was argued that since Mr. Lana was not briefed by the 4th Respondent, the Petition filed on her behalf is a nullity. He cited, Plateau, State v. AGF (2006) All FWLR (Ptr.305) 596 at 623.
The 2nd Respondent therefore urged the Court to resolve issue 1 in favour of the Respondents,
The 3rd Respondent, in her response to the 1st issue submitted that Mr. Lana is acting on a wrong impression that he has the authority of the 4th Respondent to initiate the Petition on its behalf and accordingly represent the party in prosecuting same. This, the 3rd Respondent argued was not so by reason of Exhibit AA and BB attached to the affidavit of the Ondo State Chairman of the Party, see: AJAKAYE v. F.R.N (2010) 11 NWLR (PT.1206) 500 at 527. Pages 752, 754, 755, 756 of the record were referred to in urging the court to hold that the Tribunal rightly relied on the 4th Respondent’s Constitution that the final authority resides in the National Convention to strike out the name of the 4th Respondent.
Furthermore, it was submitted for the 3rd Respondent that the Tribunal was right in its refusal to apply the provisions of Order 9 Rule 35 of the Federal High Court (Civil Procedure) Rules to the circumstances of the matter because Mr. Lana was not properly briefed.
The 3rd Respondent argued that the case of Amoo v. Alabi (2003) FWLR (Pt.174) 198 cited at paragraph 3.06 page 5 of the Appellant’s brief which the Appellant stated was ignored by the Tribunal does not help the Appellant’s case as the facts are different. It was therefore submitted that assuming without conceding that the Secretary of the Tribunal drew the attention of the Tribunal to the authority, the Tribunal would still be right to have entertained the motion that culminated into the striking out of the name of the 4th Respondent from the petition.
Again, it was submitted that the Tribunal did not strike out the Appellant’s application just because a motion cannot be used to challenge a motion. It was also contended that the decision of the Tribunal striking out the Appellants motion dated 22nd January, 2013 was not specially appealed against and as such the decision subsists. It was added that the decision striking out the motion having not been specifically challenged, the learned counsel for the Appellant cannot raise it on appeal.
The 3rd Respondent further submitted that the cases of Teriba v. Adeyemo (2010) All FWLR (Pt.533) 1868 at 1885; Kwajaffa v. Bank of the North (2004) All FWLR (Pt.248); Ukpo v. Ngaji (2010) All FWLR) (Pt.514) 144; are not relevant as the need to file Notice of change of counsel by the 4th Respondent to disengage the services of Mr. Lana and other solicitors who filed the petition and appeared for the 4th Respondent did not arise, because the 4th Respondent did not ab initio brief them to file the petition.
The Court was finally urged to resolve issue 1 in favour of the Respondents.
Mr. Ayenakin for the 4th Respondent submitted that the decision in Amoo V. Alabi (Supra) is not related to the life issues in the petition. He contended that the ratio relied upon by the Appellant is an obita; the motion referred to in the suit is a motion used as an originating process. He added that there is nothing in the letter dated 30th January, 2013 which forwarded the name, citation and a copy of the decision in Amoo V. Alabi which shows that the letter was copied to other counsel in the matter. He submitted that the Tribunal rightly ignored the letter and authority. Furthermore, he submitted that the Tribunal was right to have struck out the motion filed by the Appellant to challenge another motion. He cited: Koleso .V. Ogunyemi (2012) All FWLR (Pt.623) 2011 at 2022 Paragraph D.
On Order 9 Rule 35(1) of the Federal High Court (Civil Procedure) Rules 2009, the 4th Respondents contended that the operative words are: “Party … who sues….” and “………..his Legal Practitioner”. He maintained that the Rule applies to a party who sues and not a party in whose favour a suit is contrived without his authorization. The 4th Respondent argued that the party must have briefed a counsel; which counsel the party wishes to change. This, he observed was not the case in this appeal where the 4th Respondent’s contention at the Tribunal was that it never knew nor briefed any of the counsel that brought the Petition. For this, he submitted that the Rule does not apply to the 4th Respondent as a party cannot debrief or change a counsel he has not briefed. He referred to Plateau State v. Attorney-General of the Federation (2006) All FWLR (Pt.305) 590.
The 4th Respondent further submitted that the argument of Mr. Lana, that Banjo Ayenakin & Co. who was instructed to make an application on behalf of Accord Party is not a Legal Practitioner, is not only erroneous but also misconceived. He argued that Banjo Ayenakin & Co, is the law firm that was briefed by the 4th Respondent while Olayinka Ojo, Esq., is the Counsel who filed the process on behalf of the law firm. He argued that the cases of SLB Communication Ltd V. NNPC (2011) All FWLR (Pt.583) 1902; Moss v. Kenrow (Nig.) Ltd (1992) .9 NWLR (Pt.264) 207 are irrelevant to the argument canvassed by the learned counsel.
Counsel urged the court to resolve the issue in favour of the Respondents.
RESOLUTION OF ISSUE 1
A counsel is under a legal duty to give the name and citation of authorities he relies on in conducting his case to the court. A counsel cannot rely on the fact that a case is generally known by everyone in failing to fulfill this legal obligation.
It is an acceptable practice in the conduct of a case for a counsel to file list of additional authorities. The practice has been stretched further to accommodate a counsel who discovers relevant authorities at the close of addresses or even when a matter has been adjourned for judgment. The rule of practice allows such counsel to forward the same by a letter, making the name and citation of the authorities available to the Court. However, owing to our adversary system of adjudication and to ensure fair hearing, the counsel is duty bound to also make the authorities available to counsel to the opposing parties, See: African Reinsurance Corporation V. IDP Construction Limited (2003) 2 SCBJ 28.
The Appellant contended that the Tribunal ignored the Supreme Court decision and citation he forwarded to the court via a letter through the Tribunal’s Registrar, The Tribunal at pages 753 – 754 in their decision struck out the Appellant’s motion dated 22nd January, 2013 for failure to forward the name and citation of the Supreme Court case he referred to. While a court is enjoined to make use of relevant authorities sent to it by counsel even when a matter has been adjourned for ruling or judgment, the court can only make use of such additional authorities when it is evidenced that the additional authorities sent to the court had also been sent to the opposing counsel for his reaction.
In the instant appeal, the letter forwarding the authority to the court did not copy the Respondents’ counsel. There is nothing evidential on the face of the letter to show that the authority was made available to the Respondents’ counsel. There is also no evidence on record to that effect. The only thing pointing to the fact that the Respondents’ counsel may have been given the authority is the addition of this statement in the forwarding letter: “we are forwarding copy of this decision to the Respondents’ counsel”. This in my opinion is not conclusive of the fact that the authority was forwarded to the Respondents’ counsel. There must be a prove that the authority was made available to the Respondents’ counsel in the interest of justice. It is my understanding from the fact available in the record, that the Appellant’s counsel only sent the authority to the court without sending same to the Respondent’s counsel. For this, the Tribunal was right to have ignored the authority. See: African Reinsurance Corporation v. IDP Construction Limited (Supra).
Since the condition precedent for the Tribunal to make use of the additional authority Amoo v. Alabi (2003) FWLR (Pt.174) 198 was not met, I will not dissipate judicial energy in considering the relevance and non-relevance of the authority or other disputes based on the Tribunal’s non-consideration of the case of Amoo V. Alabi (Supra).
On the contention of the Appellant that by reason of failure of Mr. Olayinka Ojo to abide by Order 9 Rule 35(1) of the Federal High Court (Civil Procedure) Rules 2009 and Rule 27(4) of the Rules of Professional Conduct for Legal Practitioners 2007, the application filed by him was incompetent which deprived the Tribunal of jurisdiction to entertain same. For which, he urged the court to set aside the decision of the Tribunal striking out the name of the 4th Respondent and the paragraphs referring to her for being a nullity.
It is on record that the 4th Respondent on 19th January, 2013 filed a motion through Mr. Olanyinka Ojo. See: Page 550 of the record.
The grounds upon which the application was premised could be found at page 551 of the record. The six grounds in support of the application with the supporting affidavit of the State Chairman of the 4th Respondent herein, contained crucial facts which unequivocally point to the same direction and/or conclusion that the 4th Respondent (Accord Party) never briefed Mr. Michael F. Lana to institute the Petition on her behalf but consequently authorized the law firm of Banjo Ayenakin & Co to file necessary processes with a view to striking out the name of the 4th Respondent herein from the Petition. See page 553 of the record.
Exhibits AA and BB were attached to the said affidavit. Exhibit AA is the letter written by Chairman of Accord Party (4th Respondent herein) Hon. Muhammad Lawal Nalado submitted to the registrar of the Tribunal wherein the Chairman of the party stated lucidly and without mincing words as follows:
“I wish to state that ACCORD, a political party which I have privilege to serve as National Chairman did not and has not instructed any person, or lawyer, and not in the least Messrs Michaef F. Lana, Esq., Sade Aladeniyi (Mrs), Victor Olatoyegun, Esq., Sunday Aborisade, Esq., Victor Adewole, Esq., Tunde Akinola, Esq., as counsel to file any petition before the Governorship Election Tribunal.
The Petition obviously was filed by the counsel to another political party in this case The Action Congress of Nigeria without instruction or authorization of the ACCORD PARTY.
Our request is that the name of ACCORD PARTY be struck out as the party did not, and has no desire to file any petition in this case and we also as a political party…”
It is my view that the tone of this letter speaks volume and leaves nobody in doubt as to its intent. Exhibit BB was written as a follow up to Exhibit AA. By Exhibit BB, the National Chairman of Accord Party conveyed the intention of the party in respect of Petition No. EPT/OD/GOV./01/2012 and instructed the firm of Banjo Ayenakin & Co. to accordingly legally ensure the name of the 1st Petitioner/4th Respondent was struck out from the Petition.
In addition to this fact, the National Chairman denied the signature attributed to him in a witness statement on oath he allegedly made. He also appeared in Court on 22nd January, 2013 and 29th January, 2013 to maintain and ensure the stand of the party is made well known to the Tribunal.
I shall do the needful, reproduce relevant paragraphs of the National chairman’s further and better affidavit.
FURTHER AND BETTER AFFIDAVIT OF HON. MOHAMMED LAWAL NALADO IN SUPPORT OF MOTION ON NOTICE DATED 19TH JANUARY, 2013 AND FILED SAME DATE:
“I Mohammed Lawal Nalado, Male, Nigerian Citizen of 7, Yauri Street, Area 3 Garki, Abuja, do make oath and state as follows:
2. I have the authority of the National Executive Committee and the National working committee to depose to this affidavit.
5. That I also on behalf of Accord Party and its leadership instructed Messrs Banjo Ayenakin & Co. of 12, Adekunle Ajasin Road, Akure of counsel to take steps to strike out the name of Accord Party in Petition No. EPT./OD/GOV/01/2012 as Accord Party neither filed a petition nor does it desire to prosecute any against the return of Dr. Olusegun Mimiko and Labour Party during the Governorship Election of 20th October, 2012. Copy of my letter of instruction is annexed herein as Exh.2.
6. I do not know Messrs Michael F. Lana, Esq., Sade Aladeniyi, Esq, (Mrs), Victor Olatoyegun, Esq., Sunday Aborisade, Esq,, Victor Pelewole, Esq., Tunde Akinloa, Esq., and neither myself nor the National Executive Committee of Accord Party briefed any of the listed counsel who are all Action Congress of Nigeria solicitors before the Tribunal.
7. I have seen the following documents which I signed:
(i) Letter of 29th November, 2012 addressed to the Registrar Governorship Election Tribunal.
(ii) Letter of 4th January, 2013 signed by National Chairman of Accord Party and Addressed to Banjo Ayenakin & Co.
8. I have been shown the witness statement on oath signed by one Hon. M.L. Nalado in suit FHC/AK/CS/29/12 between Accord Party & 1 Or. v. INEC & Ors dated 11th September, 2012 and I know as of fact that the signature therein is not my signature and was not signed by me. Attached herewith and marked Exh.3 is a Certified True Copy of the said witness statement on oath.
9. That in the said witness statement (Exhibit 3), Hon. M.L. Nalado was described and presented as the Chairman of Accord Party and purporting to depose to the witness statement in such capacity and on behalf of the Accord Party.
11. That the signature on the said Exhibit 3 purporting to be mine as Hon. M.L. Nalado, National Chairman of Accord Party was forged.
12. I also know as of fact that I am presently 51 years of age and not 40 years as erroneously deposed to in Exhibit 3, I also do not live at No, 40, Ishaku Road, GRA Katsina, Katsina State contrary to what is contained in Exhibit 3.
13. I know as of fact, that Dr. Ajibola Falaye is the Ondo State Chairman Accord Party recognized by the National Executive Committee of Accord Party and has remained so till date.
14. That I appeared before the Tribunal on 22nd January, 2013 in support of my instruction of Messrs Banjo Ayenakin and Co, so that I can inform the Tribunal that, the petition herein was filed using the name of 1st petitioner without any authorization.
15. I saw in the Tribunal on that day one Mr. Olaniran Olanrewaju who is a member of Accord Party, presenting himself as Acting Chairman of Accord Party in Ondo State.
15c. That at no time did the state chapter of Accord Party take any decision to fife any petition against the Governorship Election of 20th October, 2012 and the people named in Exhibit 005 of the Counter Affidavit of Olaniran Olanrewaju are not members of Accord Party in Ondo State.
16. We have no Acting Chairman in Accord Party in Ondo State as there is no vacancy in the position of Ondo State Chairmanship seat, occupied by Dr. Ajibola Falaye who remains at all times the Ondo State Chairman of Accord Party.
17. I had wanted to inform the Honourable Tribunal on the said 22nd January, 2013 of the fact that the said Olaniyan Olanrewaju has been coming to this Honourable Tribunal to falsely present himself as the Acting Chairman of the Accord Party in Ondo State. I was not given the opportunity to do so.
18. To the best of my knowledge, none of Mr. Michael Lana and the other counsel listed in this Petition as counsel representing Accord Party was at any time briefed by the Party to file this petition on its behalf or keep on prosecuting it before this Honourable Tribunal.
19. There is only one Accord Party in Nigeria under my National Leadership and at no time did the leadership of the party instruct Mr. Michael Lana and his team to file this Petition and prosecute it on behalf of the Accord Party.
20. That Dr. Ajibola Falaye, Ondo State Chairman of the Accord Party informed me shortly before this Tribunal sat within the premises of this Tribunal on 22nd January, 2013 and I verily believe him that he also did not brief Mr. Michael Lana and his team to file this petition and prosecute it on behalf of the Accord Party.
21. That I was surprised when I heard Mr. Michael Lana telling this Tribunal on the 22nd January, 2013 that he was the counsel briefed by Accord Party and also the counsel on record representing Accord Party in this Petition.
23. That the Accord Party under the National Leadership is very embarrassed that its name is being used to mislead this Honourable Tribunal.
24. To the best of my knowledge Mr. Olayinka Ojo is a counsel in the Chambers of Banjo Ayenakin & Co.
25. The said Mr. Olayinka Ojo signed our application to strike out name of the Accord Party from this petition as counsel in the Chambers of Banjo Ayenakin & Co.
26. That Accord Party respects the electoral will of the Ondo State people by voting and returning Dr. Olusegun Mimiko as the Governor of Ondo State in the Governorship election held on 20th October, 2012.
27. Accord Party did not at anytime decide or wish to contest the return of Dr. Olusegun Mimiko in any Tribunal or Court.”
If the facts shown above are juxtaposed with the position of the Appellant as evidenced by his depositions in the motion filed by the Petitioners dated 22nd January, 2013; wherein it was stated under ‘particulars’ that:
(a) “The said Olayinka Ojo, Esq., is not Counsel in this case.
(b) The fact of Olayinka Ojo, Esq,, is a misconduct under Rule 27(4),29 and 30 of the Rules of Professional Conduct for Legal Practitioners and liable to punishment under Rule 55 of the said Rules.
(c) The said Olayinka Ojo, Esq., did not obtain the consent of the Solicitors on Record before touting for the brief and filing the processes.
(d) The Dr. Ajibola Falaiye who briefed Counsel has no power to do so having been removed as Chairman of the 1st Petitioner in Ondo State.
(e) The said Dr. Ajibola Falaiye was induced and had an agreement with the 2nd and 3rd Defendant to illegally withdraw the name of the 1st petitioner”. See: Page 560 of the record.
What must be resolved at this stage is: Which of these stands can be taken as the true legal position?
In Abiola v, F.R.N (1997), Belgore, J.S.C. therein held:
“The best person to decide who represents him as counsel is the appellant, and that is his Constitutional right. To my mind, the energy of the parties should be directed to the appellant to intimate his choice. 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 counsel or by any other means e.g. affidavit showing who will be his counsel. it is always a privilege, the matter of counsel, and I do not believe it is right to involve the court in this.”
The onus is on the 1st Petitioner/4th Respondent to intimate the court as to who their counsel is. This declaration has been difficult to decipher because the house of the 4th Respondent seem to be divided.
However, given the facts laid out above and from the record, there is no dispute that Mr. Lana initiated the Petition for the Petitioners on 18th November, 2012 on the instructions of one Mr. Olanrewaju Olaniran who introduced himself as the Ondo State Accord Party Acting Chairman by reason of the removal of Dr. Ajibola Falaye as the Chairman. He said the incidence of the removal was communicated to the National Executive Committee of the Party via Exhibit 004 attached to the Appellant’s Counter Affidavit filed on 26th January, 2013 and also widely publicized in the national dailies.
On his own, Mr. Olayinka Ojo representing the firm of Banjo Ayenakin & Co. was instructed by the National Executive Committee and implicitly by the alleged removed State Chairman of the Party.
From the letters written by the National Chairman and his Further and Better Affidavit, he maintained that the Party did not instruct Mr. Lana and that Mr. Olanrewaju Olaniran is unknown to the Party as there is no vacancy in the Ondo State Accord Party Chairmanship to warrant the appointment of an Acting Chairman.
The issue therefore goes beyond the 4th Respondent notifying the Court who their Counsel is but extends to the determination of which is the right body to brief a counsel to represent the Accord Party in this Governorship Election Petition matter given the facts and circumstances of the appeal.
I have examined Exhibit 004 attached to Mr. Olaniran’s Counter Affidavit. Exhibit 004 titled ‘Expulsion of Dr. Falaye Ajibola from the post of Chairman, Accord Party in Ondo State for Anti-Party Activities’ is the basis of Mr. Olaniran’s claim as the Acting Chairman of the State Party. It was on the basis of this that he assumed the authority to brief Mr. Lana to represent the Party, From Exhibit 004, I observed that 10 persons signed the document, Mr. Olaniran inclusive. I also observed that in this all important document, there is nothing in it to show that it was delivered at the National Secretariat of Accord Party or to the National Chairman for the reaction of the National Executive Committee.
From the position of the National Chairman as evidenced from the record, the National Executive Committee does not seem to know about the expulsion of Dr. Falaye nor the existence of Mr. Olaniran as Acting Chairman. The burden was therefore on Mr. Olaniran to proof he is indeed the Acting Chairman of the State Party. Exhibit 004 failed to prove this.
It is my view therefore, that Mr. Olaniran who is not known to the National Executive Committee of Accord Party as the Ondo State Acting Chairman of the Party cannot be a legally qualified person to brief a counsel to represent Accord Party in initiating a Petition. This is more concrete for the fact that the National Chairman outside Exhibit AA made Exhibit BB and backed them up on oath when he filed a Further and Better Affidavit stating that the national body took a decision to respect the wish of Ondo State electorates by not filing a petition. No member of the National Executive Committee has challenged this. Thus, I believe that the position as evidenced by Exhibits AA, BB and the Further and Better Affidavit is the true position of Accord Party in respect of Petition No: EPT/OD/GOV/01/12.
I am not unaware of the argument of Mr. Lana that, it is the State Executive Committee of the Party that should decide who to brief and whether to initiate a Petition, In the event that I uphold this argument, my conclusion will still not change since I had earlier on held that Mr. Olaniran has not sufficiently shown that he is rightfully representing the party as Acting Chairman in Ondo State. His position is made worst as Dr. Falaye is still functioning as the Chairman of the State Party under the recognition of the National Executive Committee.
Come to think of it, the 4th Respondent is “Accord Party” not Accord Party, Ondo State Chapter. The 4th Respondent connotes and or infers the national body. If so, the State chapter cannot exclusively decide on an issue that will affect the Party as a whole. I am of the believe therefore that given the circumstances and facts of this case, Mr. Olaniran was not the rightful person to brief a counsel on behalf of Accord Party. I hold that the instruction signed by the National Chairman attached as Exhibit 2 to the 4th Respondent’s Further and Better Affidavit titled “Authorization of Counsel to strike out the name of Accord Party” at page 517 of the Record is the valid decision of Accord Party on who their Counsel is.
From the foregoing, it is beyond disputation that Accord Party did not authorize or instruct that the Petition be filed neither did it give its consent to its prosecution. Accord Party cannot by any means be compelled to continue with the prosecution of the Petition,
Accordingly, Order 9 Rule 35(1) of the Federal High Court (Civil Procedure) Rules 2009, the authorities relied upon, Rule 27(4) of the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC), and cases cited are irrelevant to the subject matter of this appeal, The reasons are simple, Accord Party did not file a petition neither did it brief Mr. Lana to file one on its behalf. Not having briefed Mr. Lana, Mr. Lana was not Accord Party’s Counsel. Consequently, the question of Mr. Olayinka Ojo, Esq., giving prior notice to Mr. Michael F. Lana did not arise. It borders on ordinary common sense that a party cannot debrief a counsel he did not brief. See: Plateau State V. Attorney General of the Federation (2006) All FWLR (Pt.305) 590.
On the argument that Banjo Ayenakin & Co. who was briefed by Accord Party is not a Legal Practitioner, the distinction between a process signed by a firm of lawyers and a firm of lawyers which has been briefed to represent a party must be drawn. While Banjo Ayenakin & Co. who is not a Legal Practitioner cannot sign a valid process to be filed in Court, I view that Banjo Ayenakin & Co. can be and was rightly briefed by Accord Party. The difference is that while representing their client just as Mr. Olayinka Ojo did, a Legal Practitioner in that firm will sign and file processes and prosecute the matter. Mr. Lana seems to have mixed up the two and consequently made erroneous submissions on this. The cases he relied on are not relevant to the misconceived submissions.
In all, I hold that the 1st Petitioner/4th Respondent was not a Party to the Petition which it did not present neither did it brief a Counsel to present on its behalf, I further hold that Mr. Olayinka’s application was competent, being a Counsel in Banjo Ayenakin & Co. which was briefed by the 4th Respondent to bring an application on its behalf.
Issue is accordingly resolved in favour of the Respondents.
ISSUE 2:
“Whether the lower tribunal court in the circumstances of this case hear and determine the Respondents’ Preliminary objections and dismiss the petition in limine.”
The learned counsel for the Appellant submitted that the Tribunal was wrong when it failed to follow the decision of the Supreme Court in PDP V INEC (2012) 7 NWLR (Pt.1300) 538 at 559 – 560. He contended that the Tribunal in the face of the above Supreme Court decision ought not to have held that paragraphs 12(5) cannot be independent of 18(7)(d); 47(L) and 53(2) and (5) of the 1st Schedule to the Electoral Act when the Supreme Court had already made a pronouncement on paragraphs 12(5) and 47(1) of the 1st Schedule to the Electoral Act.
He further submitted that the Tribunal’s interpretation of paragraph 12(5) was misconstrued as the paragraph is to ensure objections raised do not derail the determination of the merit of a case by undue and unwarranted delays occasioned by Preliminary Objections. He urged the Court to hold that the Tribunal was wrong to determine the objection in limine thereby striking out the Petition.
Learned Counsel further submitted that the Tribunal having consolidated the Petition with three other Petitions was bound to hear them together in one trial and could not dismiss any limine. He cited: Ezike V. Agbuaba (2008) 11 NWLR (Pt.1099) 627 at 653 – 654; Diab Nasir v. Complete Home (1927) 5 SC 1 at 11,
Both the 1st and 2nd Respondents did not submit on this issue.
The 3rd Respondent in her response submitted that the provisions of paragraphs 18(7)(d), 47(1) and 53(2) of the 1st Schedule to the Electoral Act followed by the Tribunal are apt given the circumstances and peculiar facts of the case in contradistinction to the circumstances and facts of the case of PDP V. INEC (2012) 7 NWLR (Pt.1300) 538. He added that the Tribunal was not wrong by not following the decision of the apex court as the authority is distinguishable. He reproduced the dictum of Muntaka Coomassie, JSC at pages 558 – 559 paragraphs C – B.
It was further contended for the 3rd Respondent that it will be absurd to argue that the Respondent having incorporated the objection in her reply could no longer file a motion more importantly, since the objection was an attack on the jurisdiction of the Tribunal. He cited: A.G. Rivers State v A.G. Akwa Ibom Stae (2011) 8 NWLR (Pt. 1248) 31.
On the principle of consolidation, the 3rd Respondent submitted that the submission of the Appellant was misconceived. He relied on Diab Nasir V. Complete Home Enterprises (Nig) Ltd (1977) 5 SC 1.
3rd Respondent urged the Court to resolve the issue against the Appellant.
The 4th Respondent submitted that the procedure adopted by the lower tribunal was right. The Tribunal had the option either to consider the Preliminary Objection or to defer same to the hearing of the Petition. By hearing it in limine, the lower Tribunal was in order. The court was urged to resolve the issue in favour of the Respondents.
RESOLUTION OF ISSUE 2
The issue here is: In the face of the Supreme Court decision in PDP V. INEC (2012) 7 NWLR (Pt. 1300) 538 at 559 – 560, was the Tribunal right to have relied on Paragraphs 18(7)(d) and 53(2) and (5) of the 1st Schedule to the Electoral Act to determine the objection before the substantive petition?
In PDP v. INEC (supra), Muntaka Coomassie, JSC at pages 558 – 559 Paragraphs C – B put the point beyond any per adventure thus:
“The main contention of the appellant in this appeal my lords is that the lower court was wrong to affirm the decision of the Tribunal that struck out various paragraphs of the petition in it final judgment. It was the contention that the trial Tribunal wrongly relied on paragraph 12(5) of the 1st Schedule and that by the provisions of paragraph 47(1) all motions shall be moved at pre hearing session except in extreme circumstances with the leave of Tribunal. Paragraph 12(5) of the 1st Schedule to the Act, 2010 provides thus:
“……………………………………………”
While paragraph 47(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) provides thus:
“……………………………………………”
With tremendous respect, these paragraphs of the 1st Schedule apply to the different situations in the proceedings, i.e:
i. Where a party approaches the Tribunal with objection by way of motion, such motion shall be moved and determined during pre-hearing session except in extreme circumstances with the leave of the Tribunal, that is the position under the provisions of paragraph 47(1) of the 1st schedule; and
ii. Where the objection is embedded or stated in the reply, such objection shall be heard along with substantive case.
In the instant case or appeal, the respondent adopted the latter procedure by stating the objection in their reply and argued same. In their final written address and the appellant also replied in its own written address.
In my view the provisions of the two paragraphs are clear and unambiguous and are not subject to any interpretation and I only wish to state that where the law provides for two methods or procedures for doing a thing, a party can choose any of the methods so provided.”
I shall also reproduce the paragraphs of the 1st Schedule relied on by the Tribunal. They are:
Paragraph 18(7)(d)
(18)(7) At the pre-hearing session, the tribunal or court shall consider and take appropriate action in respect of the following as may be necessary or desirable –
(d) Hearing and determination of objections on point of law.
Paragraph 53(2) and (5)
(53)(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken thereto shall show clearly the legal grounds on which the application is based.
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.
By the decision of the Supreme Court in PDP V. INEC (Supra); the provisions of paragraphs 12(5) and 47(1) of the 1st Schedule to the Electoral Act are two methods or procedures for objecting to a petition. The Respondents are entitled to elect any of the two. The election here entails the exercise of choice by the Respondents. The Respondents by the doctrine of election are compelled to choose between the two options open to them by virtue of paragraphs 12(5) and 47(1) of the 1st Schedule to the Electoral Act; and precluded from the use of the other paragraph. The obligation imposed on the Respondents by the doctrine of election entitles them to enjoy the benefit of paragraph 12(5) or 47(1) and not the two in a given Petition.
The dispute in the instant appeal is that the Respondents who had elected to file their objection along with their reply under paragraph 12(5) turned around to also choose the procedure under paragraph 47(1). This runs counter to the spirit of election for which the apex court in PDP V. INEC (supra) held that paragraphs 12(5) and 47(1) represent, in raising objections against election Petitions. Accordingly, the two rights in paragraphs 12(5)(d) and 47(1) will not ordinarily be available for the use of the Respondents in this given election petition trial. There is no doubt therefore that the Tribunal adopted a wrong procedure when it heard the motions before the substantive Petition after the Respondents had previously elected paragraph 12(5) by incorporating their briefs in their respective replies to the Petition.
However, I must at this point bring to remembrance that matters are determined based on their peculiar facts and circumstances. The Appellant consented to the hearing of the objections filed by the Respondents under paragraph 47(1) after they had elected paragraph 12(5). See: the proceedings of the Tribunal on 22nd January, 2013 at pages 728- 729. The irregularity being procedural in nature, by paragraph 53(2) the Appellant is foreclosed in law to complain at this stage. The Appellant’s complaint was not made within a reasonable time and he had taken several steps after he came to the knowledge of the irregularities. He is accordingly deemed to have waived his right in law. Therefore, the Tribunal was right to have heard the motions by virtue of paragraphs 18(7)(d) and 53(2) and (5) which have been reproduced above.
On the Appellant’s submission at paragraph 6.04 at page 23 of the Appellant’s brief to the effect that, in so much as the Tribunal had consolidated his Petition with other three Petitions, the Tribunal must hear them together and cannot strike out any in limine.
The principle of consolidation is to hear cases with similar issues together with a view to ensure expeditious hearing of the cases and to save cost. See: Diab Nasir V. Complete Home Enterprises (Nig) Ltd (1977) 5 SC 1. In my opinion, I do not agree with the Appellant that the principle postulates that incompetent petition or matter must be heard at all cost simply because it has been consolidated with other matters or petitions. For the fact that consolidated petitions are not like siamese twins, the Tribunal cannot embark on an exercise in futility in the name of consolidation when the matter is incompetent. The cases of Diab Nasir v. Complete Home Enterprises (Nig.) Ltd. (1977) 5 SC and Ezike v. Egbuaba (2008) 11 NWLR (Pt.1099) 627, are not authorities to support the Appellant’s position, They are therefore not relevant.
In all, I resolve issue 2 in favour of the Respondents.
ISSUE 3:
“Whether the main issue in the petition could be determined on the Pleadings, Witnesses statement on oath, documents attached to the pleadings and the state of the law and Whether on the state of the pleadings, the law and the facts before the lower Tribunal, the Petitioners were not entitled to judgment.”
The Appellant contended that at page 782 of the Record, the Tribunal declined to use the documents and witnesses’ statements on oath to decide the petition. It was the Appellant’s argument that the Tribunal having made use of the pleadings, statement on oath and some documents to hold as follows:
“The Respondents submitted that the Petitioner was not nominated by his party, but Petitioner insists that he was. Officials of INEC attended the special convention held by Accord party on the 3rd of August, 2012. They were invited by Accord party’s fetter of August 1st 2012 and they attended. It was a primary election to hold at Green Park Hotel, Idanre Road, Akure. The fact is admitted. After attendance, INEC did not do anything. It may not be required to do anything but where is the report that the primary election fell short of the requirements of a congress?”
The Tribunal ought to have given its final decision upon its finding above.
Learned Counsel for the Appellant referred to the case of Abubakar V. Yar’Adua (Supra). He went on to highlight the four things the Appellant must plead and prove from paragraphs 7.04-7.54. The Appellant laid out and examined the parties’ position on what the Appellant was expected to plead and prove in his petition.
He urged the Court to hold that INEC received the Nomination Form and list of candidates by letter of 10th August, 2012 and it is estopped from denying same.
In response, the 1st Respondent argued that the grouse of the Appellant as expressed in this issue is that the Tribunal did not enter judgment in his favour, even without formal adoption of witnesses’ written statements on oath or formal tendering of any documentary evidence. It was submitted for the 1st Respondent that the procedure sought by the Appellant to be adopted by the Tribunal was absurd and alien to our jurisprudence.
The 1st Respondent urged the court to hold that the Tribunal was right in not entering judgment for the Appellant at that stage but rather determined the issue of jurisdiction raised by the Respondents.
The 2nd Respondent did not submit on this issue.
The 3rd Respondent submitted that the prayers of the Appellant particularly prayer 4 in his motion dated and filed 5th January, 2013 is novel and unknown to Law. The prayer is not sustainable and the Tribunal rightly dismissed the reliefs.
The 4th Respondent submitted that for the fact that the principal claim of the Appellant is declaratory, by the well laid down principles guiding the grant of declaratory reliefs, the claims of the Appellant not being grantable without evidence; the Tribunal was right to have so held. He cited: Olateju v. Sanni (2011) All FWLR (Pt.590) 1257; Egonu v. Egonu (1978) 11 – 12 SC 111 at 130; Henshaw V. Effanga (2009) All FWLR (Pt.460) 1896.
Learned Counsel urged the court to resolve the issue against the Appellant.
RESOLUTION OF ISSUE 3
In resolving the issue, I shall start by noting that I discountenanced the examination and review of the witnesses’ statements and documents carried out by the Appellant at pages 24 -37 paragraphs 3.04 – 7.54 of the Appellant’s brief for being irrelevant. I also discountenanced replies on said examination and review made by Respondents.
The Appellant by motion dated the 5th January, 2013 and filed the same date prayed the trial Tribunal for the following reliefs:
1. “An Order directing that all preliminary objections filed herein be heard along with the substantive petition.
2. An Order directing that the issue whether the petitioners submitted the list of candidates, Affidavit and nomination form of 2nd petitioner to 1st respondent be resolved by the witnesses’ written statements on oath and documents already filed in this petition.
3. An Order deeming the witnesses’ statements on oath and documents filed by all parties as prima facie evidence rendered by the parties on the said fact.
4. An Order giving judgment for the petitioners consequent upon reliefs 2 and 3 above and the state of the law and upon the admission of the respondents that the petitioners were excluded from the Governorship Election held on 20th October, 2012.”
The Learned Counsel for the Appellant called in aid the provision of paragraph 54 of the 1st schedule to the Electoral Act which empowers the tribunal and the parties to apply the provisions of the Federal High Court Rules with modification as may be necessary.
The Learned Counsel referred to Order 20 Rule 2 of the Federal High Court (Civil Procedure) Rules and Section 107 of the Evidence Act to submit forcefully that the court is entitled to consider the witnesses’ statements on oath and the documents filed along with the petition to give judgment to the Appellant without necessarily calling the witnesses to adopt their statements on oaths at the hearing and tender relevant documents. See: pages 441 – 473 of the Record of Appeal for the said motion on notice filed by the Appellants, the affidavit in support, documents attached thereto and the written address.
The Respondents filed their respective counter and supported same with written addresses.
It is trite that reliefs in Election petition cases are generally declaratory in nature. For the avoidance of any doubt and for emphasis, I quote the reliefs sought by the Appellant in his petition – to be found at pages 6 – 7 of the Record; thus:
i. “That it may be declared that the Governorship Election held on 20th October, 2012 in Ondo State wherein the 2nd Petitioner though validly nominated for the election but unlawfully excluded, is valid and unlawful.
ii. An order setting aside and/or nullifying the Ondo State Governorship Election held on 20th October, 2012 and the return of the 3’d Respondent, Dr. Rahman O. Mimiko as winner of the said election.
iii. AN order directing the 1st Respondent to conduct a fresh Governorship Election in Ondo State forthwith wherein the 2nd petition shall be allowed to participate as the Governorship candidate of the 1st petitioner.”
In the case of JUSTICE PARTY V. INEC (2006) ALL FWLR (PT.339) 907 at 944 C- D; this Court following the decision of BUHARI v. OBASANJO (2005) ALL FWLR (PT.273) 1 OR (2005) 2 NWLR (PT.910) 241 observed as follows:
“….a petition is a declaration of the appellant’s right in which the reliefs sought are declaratory. The appellant is under a duty to adduce cogent and convincing evidence in support of his assertion. He has to succeed on the strength of his own case and not on the weakness in the case of the respondent. “
It is the law that failure to file defence will not entitle a party claiming declaratory reliefs to judgment. Being an equitable relief, it is granted at the discretion of the Court and only when the Court is satisfied that the party is entitled to the declaration sought. See the case of: SALAU v. PARAKOYI (2001) 1 NWLR (PT.695) 446 or (2000) LPELR CA/L/87/97.
Under the Electoral Act, paragraph 41 of the First Schedule as amended provides for the type of evidence required at the hearing of a petition. The Act did not provide that a party can merely rely on the witness statement on oath without adopting same and the witness going through the normal procedure of cross examination to test the veracity of the witness. Apart from that, the various documents either listed or filed along with the petition or referred to in a deposition must be tendered by a witness after adopting his statement or tendered by consent.
The Tribunal will ordinarily have no jurisdiction to consider and make use of the statements on oath of the Appellant with all the accompanied documents frontloaded spanning pages 14 – 59 of the record without following paragraph 41. It is trite that the witness statement even though on oath will still not constitute evidence until the witness enters the witness box and led by his lawyer to adopt his statement, tender undisputed documents and those referred to in his depositions and subsequently cross examined.
In the instant appeal, it must be noted that the documents that accompanied the Petition are largely disputed by the parties and the requisite objection can only be taken at the point of tendering the documents at the hearing where the admissibility of the documents will be determined, See the case of: ORAKWE V. CHUKWUKA (201,2) NWLR (PT.1280) 87 at 201 PARAS D-E.
I hold the view that the enactment of paragraph 41 of the First Schedule to the Electoral Act is to give effect to the sui generis nature of Election petition proceedings where time is of essence and to give effect to the established principle stated above that Election petition is a proceeding where reliefs sought are declaratory in nature and there is no room for granting those reliefs on admission or failure to file defence. From the Act, the only acceptable way of proving a fact in election petition are as laid down in paragraph 41 of the First Schedule to the Electoral Act. The Tribunal therefore, correctly refused to enter judgment for the Appellant at an interlocutory stage on the basis of unadopted written witnesses’ statements on oath and conflicting documents attached to parties’ respective written statements.
From the foregoing I resolve issue 3 in favour of the Respondents.
Having resolved the three issues in favour of the Respondents, I hold that the appeal lacks merit, it is hereby dismissed. I uphold the decision of the Tribunal in petition No: EPT/OD/GOV//01/2012 on the issues resolved herein.
I make no order as to cost.
TIJJANI ABDULLAHI, J.C.A.: I agree.
ALI ABUBAKAR B. GUMEL, J.C.A.: I agree.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.
Appearances
Michael F. Lana with Mrs. F.B. Aladeniyi, Victor Olatoyegun, Charles Titiloye, Bola Alabi, Segun OlubolaFor Appellant
AND
O. Osaze – Uzzi for 1st Respondent.
E. Jegede SAN., with E.A. Effiong, S.A. Ayesa, K. Ejalana, Olumide Ogunje, Akeem Olaniyan, Mrs. A. Ajileye George for 2nd Respondent.
– K, K. Eleja, R.O. Balogun, A.O. Abdulkadir, S.A. Abdullahi, Taofiq Alubarika, H. O. Abaya for 3rd Respondent.
Olubanjo Ayenakin with Olayinka Ojo, Adeolu Ajayi for 4th Respondent.For Respondent
