PEOPLES DEMOCRATIC PARTY v. EMMANUEL JIME & ORS
(2018)LCN/12265(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of July, 2019
CA/MK/EP/GOV/5/2019
RATIO
INTERPRETATION: LANGUAGE OF INTERPRETATION
“It is a cardinal rule of constitutional interpretation that where the language of the Constitution is clear, plain and unambiguous, it must be given its plain and evident meaning. See Nafiu Rabiu V State supra, Attorney General of Bendel State V Attorney General of the Federation (1982) 3 NCLR 1, AC V Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223 and Elelu Habeeb V Attorney General of the Federation (2012) 13 NWLR (Pt. 1318) 423. The language of the above provision being plain, clear and unambiguous must be given its plain and evident meaning.” PER OSEPH EYO EKANEM, J.C.A.
INTERPRETATION: INTERPRETATION OF THE CONSTITUTION
“In Rabiu v State supra. it was held that expressio unius has very little weight when it is possible to show that there is no intention to effect an exclusio alterius by the use of expressio unius. I think that this is the situation in respect of Section 285(8) of the Constitution. The Constitution should not be given a narrow construction which is what the construction canvassed by appellants counsel amounts to. Such an interpretation of the Constitution is not permissible. See Attorney General of Ondo State v Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222.” PER OSEPH EYO EKANEM, J.C.A.
JURISDICTION: INHERENT JURISDICTION
“Additionally, the inherent jurisdiction or inherent power of a Court is that which is not expressly spelt out by the Constitution or in any statute or rule; but which can, of necessity, be invoked by any Court of record to supplement its express jurisdiction and powers. It is a most valuable adjunct to the express jurisdiction or powers conferred on our Courts of record by the Constitution. Courts, in proper cases, use their inherent jurisdiction to control persons, for instance, in cases of contempt of Court; to control processes, such as when they strike out actions which are frivolous or vexatious or an abuse of process; and to control lower courts or tribunals, such as when they order stay of proceedings. Instances in which Courts have properly exercised their inherent powers are in-exhaustive. In Nwaogu V Atuma (2012) LPELR-19647(SC), the Supreme Court, per Ngwuta, JSC, held: ‘Inherent power is inborn in the Court. It enables the Court to deal with diverse matters over which it has intrinsic authority such as procedural rule making, regulating the practice Of law and general judicial housekeeping… Inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred upon it.'” PER OSEPH EYO EKANEM, J.C.A.
PETITION: WHETHER ELECTION PETITION IS TIME BOUND
“It is trite that an election petition is sui generis and is time bound. Therefore citing ordinary civil cases when it comes to management of time by an election tribunal may not be helpful.” PER OSEPH EYO EKANEM, J.C.A.
Justice
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)
AND
1. EMMANUEL JIME
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. SAMUEL IORAER ORTOMRespondent(s)
OSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling of the Benue State Governorship Election Petition Tribunal holden at Makurdi (the Tribunal) delivered on 3/6/2019. In the ruling, the Tribunal deferred or suspended its ruling on an interlocutory application filed and moved by the appellant and opposed by the 1st and 2nd respondents until the final judgment stage.
The facts of the case relevant to this appeal are that the 3rd respondent conducted election for the office of the Governor of Benue State on 9/3/2019 and a supplementary election to the same office on 23/3/2019. The 4th respondent was a candidate at the election sponsored by the appellant. Thirty-two other candidates contested the election including the 1st respondent who was sponsored by the 2nd respondent. At the end of the process, the 3rd respondent declared the 4th respondent as the winner of the election and returned him as elected.
Aggrieved by the return, the 1st and 2nd respondents filed a petition against the return. The appellant filed a reply to the petition. The 1st and 2nd respondents filed a reply in response along with the written deposition of one Joe Abaagu. The appellant after being served with the reply and the said deposition filed an application before the tribunal to strike out certain paragraphs of the 1st and 2nd respondents reply along with the additional witness statement of Joe Abaagu. The 1st and 2nd respondents filed a counter affidavit accompanied by a written address in opposing the application. The appellant filed a reply on points of law.
The motion was moved and opposed on 3/6/2019. Thereafter the tribunal stated regarding arguments on when to rule as follows:
We have taken and heard the 3rd respondents application. We are satisfied that it is more expedient for us to defer or suspend our ruling until the final judgment stage, than to deliver it now
Our ruling in this interlocutory application shall be and is hereby suspended until the final judgment, by Gods grace
Aggrieved by the above, the appellant has appealed to this Court by way of a notice of appeal filed on 6/6/2019. Another notice of appeal was filed on 10/6/2019. The appellant abandoned the notice of appeal filed on 6/6/2019. The same was accordingly struck out.
At the hearing of the appeal on 23/7/2019, O.A. Maduabuchi (SAN) for the appellant adopted and relied on appellants brief of argument filed on 20/6/2019 and the reply brief filed on 26/6/2019 in urging the Court to allow the appeal.
K.K. Eleja (SAN) for the 1st and 2nd respondents adopted and relied on the brief of argument filed on their behalf on 24/6/2019 in urging the Court to dismiss the appeal.
Uyi Igunmu, Esq. for the 3rd respondent and John Shishi, Esq. for the 4th respondent informed the Court that they did not file any brief of argument and so they had nothing to urge.
In his brief of argument, appellants senior counsel has formulated two issues for the determination of the appeal. The issues are:
(1) Whether Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) introduced by the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, or any other law permits the Tribunal to suspend the delivery of a ruling on an interlocutory application that does not relate to the competence of the petition itself until final judgment in the petition (Grounds 2, 3 and 4).
(2) Whether the Tribunal was right to suspend its ruling on the applicants interlocutory application and thereby compelling the appellant as a respondent in the election petition to go to trial, not having any opportunity of responding to new facts raised by the petitioner in the petitioners reply to the appellants reply and without any certainty as to what the valid pleadings and witness statements before the Tribunal are. (Grounds 1, 5 and 6).
1st and 2nd respondents senior counsel in his brief of argument presented a lone issue for the determination of the appeal. The issue is,
Whether having regards to the state of the law regarding an election petition, the Honourable Trial Tribunal was not right in ruling that decision on the Application of the Appellants (sic) will be delivered alongside the find judgment on the Petition.
Before treating the appeal it is pertinent at this stage to state that 1st and 2nd respondents gave a notice of preliminary objection challenging the competence of the appeal at pages 2 and 3 paragraphs 3.0 and 3.1 of their brief of argument. Arguments in respect thereof are at pages 3 5 paragraphs 4.1 4.8 of the said brief of argument. Before the hearing of the appeal, senior counsel for the 1st and 2nd respondents sought for and was granted leave to argue his preliminary objection. He adopted his arguments thereon in his brief of argument in urging the Court to strike out or dismiss the appeal.
In his response, senior counsel for the appellant referred to and adopted his reply to the preliminary objection contained in paragraphs 2.1-2.11 of his unpaginated brief. He urged the Court to dismiss the preliminary objection.
The sum of the grounds of the preliminary objection is that:
(i) there is no appealable decision to warrant the appeal;
(ii) the appeal is an abuse of Court process; and
(iii) the appeal is undesirable.
1st and 2nd respondents counsel submitted that no adverse ruling was made against the appellant and that the Tribunal did not decide the application by refusing or granting it. It was his further submission that there was therefore no genuine grievance worthy of being expressed through an appeal. He qualified the ruling of the Tribunal as not being an appealable decision but rather an obiter dictum which is not subject to an appeal. He posited that even if the ruling of the Tribunal was an appealable decision, it is such as could be taken together with the substantive appeal at the end of the day.
Counsel for the appellant, in his response referred to Section 318(1) of the Constitution of Nigeria 1999 (as amended), the cases of Nafiu Rabiu v State (1980) 2 NCR 117, Jegede v Akande (2014) 16 NWLR (Pt. 1432) 43 and PDP v Alex Otti (2015) LPELR 25788 (CA). He submitted that the ruling of the Tribunal was an appealable decision. He contended that the ruling was not obiter dictum. He stated that the appeal was desirable as the decision of the tribunal had made it impossible for its right to fair hearing to be observed in the course of the hearing of the petition.
Section 246(1)(c) of the Constitution of Nigeria, 1999 (as amended) provides for appeals to lie as of right from decisions of Governorship Election Tribunal. Section 318 (1) of the same Constitution states that: decision means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.
In interpreting a similar provision in Section 277 (1) of the Constitution of Nigeria 1979, Udo Udoma, JSC, in Nafiu Rabiu V State supra. stated as follows:
In my opinion, the phrase in the definition to which the greatest importance ought to be attached is the expression which reads: means any determination of that Court and includes The purpose of the use of such expression in my view is to widen the scope of the concepts covered by the term decision. It is certainly not to narrow its meaning as has been urged by the learned counsel. Used in that wide sense, the term decision, in my view would cover all forms of conclusion involving decision making. In Whartons Law Lexicon, 14th edition at 305 and 545 (1938) decision is defined as meaning a judgment and judgment as meaning a judicial determination or decision of a Court Put in another way, the term judicial determination would mean in the con Justice of the case in hand, any determination by a Judge.
In the Blacks Law Dictionary 8th edition, page 436, an appealable decision is defined as, A decree or order that is sufficiently final to receive appellate review (such as an order granting summary judgment) or an interlocutory decree or order that is immediately appealable, usu. by statute (such as an order denying immunity to a police officer in a civil rights suit). (Underlining is mine for emphasis).
The foregoing was quoted with approval by this Court in Jegede v Akande (2014) 16 NWLR (Pt. 1432) 43, 74. The phrase interlocutory is defined as, (Of an order, judgment, appeal etc) interim or temporary, not constituting a final resolution of the whole controversy page 832 of the Blacks Law Dictionary supra.”
The Tribunal gave an interlocutory order or direction as to when it would deliver its ruling on the application that had been moved and opposed before it. This to my mind constitutes an appealable decision within the contemplation of Section 318(1) of the Constitution of Nigeria. In the case of PDP V Alex Otti (2015) LPELR 25788 (CA), this Court considered whether or not the ruling of an election petition tribunal deferring its decision on some applications heard by it to the judgment stage amounted to a decision which was appealable. Barka, JCA, relying on Obi V Okeke (2008) LPELR 3957 (CA), held as follows:
Obviously and from the above situated position of the law, the holding of the lower Tribunal deferring its ruling on the two motions canvassed before it amounted to an appealable decision
The contention of 1st and 2nd respondents counsel to the effect that the appeal is an abuse of Court process was based on their presupposition that the ruling of the Tribunal is not appealable. Having held that the decision is appealable, the contention of counsel in that regard comes to nought and I reject it.
The above notwithstanding, it is to be stated that in the course of the hearing of the appeal, senior counsel for the appellant was asked by this Court to address it on whether or not this appeal is not an abuse of judicial process in view of the fact that an appeal by the 4th respondent (CA/MK/EP/GOV/4/2019) raising the same issue/s between the same parties was heard and judgment reserved by this Court. The learned senior counsel for the appellant gave a negative response to the issue. Though he admitted that the interest of the appellant and the 4th respondent are the same, he stated that the application of the appellant at the Tribunal was different from that of the 4th respondent. For the 1st and 2nd respondents, Eleja (SAN) posited that a pronouncement of this Court as to the entitlement of the tribunal to reserve its ruling would take care of all the controversy, and that there was an abuse of Court process.
In the case of Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156, 188 189, Karibi Whyte, JSC, discussed the concept of abuse of judicial process thus:
The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of Justice. It is recognised that the abuse of the process may lie in both a proper and improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of Justice.
This will arise in instigating a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu V Okoromadu (1977) 3SC 21, Oyegbola V Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of Justice, such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.
See Harriman V Harriman (1989) 5 NWLR (Pt. 119) 6. Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross appeal and a respondents notice. See Anyaduba V N.R.T. Co. Ltd (1990) 1 NWLR (Pt. 127) 397, Jadesimi V Okotie Eboh (1986) 1 NWLR (Pt. 16) 278. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issues of facts already decided by Courts below See Alade V Alemuloke (1988) 1 NWLR (Pt. 69) 207.
The above was quoted by Mohammed, JSC (as he then was) in Ogoejeofo V Ogoejeofo (2006) 135 LRCN 785, 797 799.
To sustain a charge of abuse of judicial process by multiplicity of actions, there must exist;
(i) institution of multiplicity of suits (this includes appeals);
(ii) against the same opponent;
(iii) in respect of the same subject matter; and
(iv) on the same issue/s. See Conoil V Vital S.A. (2018) 9 NWLR (Pt. 1625) 463.
There is no doubt, as stated by senior counsel for appellant, that at the tribunal the appellant and the 4th respondent filed different applications aimed at striking out the same paragraphs of the appellants reply and the written deposition accompanying it. However, as readily and honourably admitted by appellants senior counsel, the interests of the appellant and the 4th respondent in the petition are the same. It is my view that the appellant and 4th respondent ought to have filed a joint application before the tribunal challenging the relevant paragraphs of the petitioners reply and the written deposition accompanying the said reply.
In PDP V Peterside (2016) 7 NWLR (Pt. 1512) 574, 584 Mohammed, CJN, opined that,
Since the appellant in this appeal is the political party which sponsored the 4th respondent as its candidate to contest the Gubernatorial Election in Rivers State whose interests are the same in the election, there is no reason whatsoever in my view, that the parties would file and pursue separate appeals in this matter. This is because as far as the interest of the candidate and the political party sponsoring him are concerned, their interests in the election are not separate to justify filing and pursuing separate processes in Courts.
Similar views were expressed by Ngwuta, JSC, in Agbaje V INEC (2016) 4 NWLR (Pt. 1501) and Ladoja V Ajimobi (2016) 10 NWLR (Pt. 1519) 87. In the recent case of Guruyel V Bara & Ors (2018) LPELR 44399 (CA), this Court, per Abiru, JCA, summarised the current position of the law thus:
The present position of the law is that where parties with the same interest in a subject matter, or whose interest in a subject matter are subsumed into each other, are joint defendants or respondents in a lower Court and judgment is given against them, and one of the parties appeals against the judgment and designates the other party as a respondent in the appeal, any other subsequent appeal filed by [the] other party with the said joint interest, or subsumed interest, will amount to improper use of the appellate process.
By extension, where a candidate to an election and the sponsoring political party are parties to an election petition, their interests being the same, where one of the parties files an application making the other party a respondent to the application, any similar application filed by the other party will amount to an abuse of judicial process. This is because the said parties have the same interest against the same opponent/s in respect of the same subject matter and on the same issue/e. In such a circumstance, there is a real possibility of two conflicting decisions in respect of one and the same subject matter and issue. In the case of Dingyadi V INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154, 221, Rhodes Vivour, JSC, explained the raison detre for the rule against multiplicity of actions thus:
The basis of the rule is the real possibility of two conflicting decision in respect of one and the same subject matter See also PDP V Sheriff (2017) 15 NWLR (Pt. 1588) 219, 266.
The virus of abuse of process was present in the applications filed by the appellant and the 4th respondent at the tribunal. One application by one of the two would have sufficed. That virus has been transmitted to the appeals before us by the said parties. That is why in my view this appeal is an abuse of process. I accordingly dismiss the same.
Since this Court is a penultimate appellate Court, I shall however proceed to consider the appeal on the merit. In doing so, I shall adopt the sole issue framed by senior counsel for 1st and 2nd respondents, viz; Whether having regards to the state of the law regarding an election petition, the Honourable Trial Tribunal was not right in ruling that decision on the application of the appellants will be delivered alongside the final judgment on the petition.
The issue incorporates and subsumes the two issues raised by appellants counsel.
Appellants senior counsel contended that the Tribunal lacks the jurisdiction to suspend the delivery of ruling in interlocutory applications that has been argued before it whenever those applications do not challenge the competence of the election petition before it. This, he said, is because every Court or tribunal is obliged to hear and determine all interlocutory applications by handing down interlocutory decisions on their merits so that such decisions would guide the manner in which the actual trial of a case or a petition is conducted before the stage of judgment. In support, he cited and relied on Mwana V Gomwalk (2014) LPELR 23329 (CA) and Ado V Ado (2016) LPELR 41116 (CA). He emphasised the point that it is the outcome of interlocutory applications that enables the parties to an election petition to map out their trial strategies and exercise their right to fair hearing with the certainty that only binding judicial decisions can provide. Thus, he posited, every tribunal is obliged to determine all interlocutory applications before it in an election petition before proceeding to hear the petition.
Senior counsel referred to Section 285(8) of the Constitution of Nigeria, 1999 (as amended) and argued that the necessary conclusion from its plain and unambiguous wording is that where interlocutory applications do not touch on the jurisdiction of the tribunal and do not relate to the competence of the petition itself, the tribunal must deliver it ruling at the interlocutory stage. It was his view that the discretion claimed by the tribunal in deferring its ruling is not provided for in the Constitution or any other law. He invoked the law that the express mention of one thing excludes the things not mentioned to contend that the express mention of specific interlocutory applications in the said provision excludes other types of interlocutory applications from the power of the Court to suspend its ruling.
He referred to Orji V Onyemere (2015) LPELR 25652 (CA) and submitted that the decision is against the position taken by the tribunal. It was his further submission that any decision of this Court to the effect that an election tribunal has inherent power to suspend its ruling in all kinds of interlocutory applications, whether or not they relate to the jurisdiction of the tribunal or the competence of the petition should not be followed in the light of Section 285(8) of the Constitution as such decision is per incuriam. He was of the view that Section 285(8) of the Constitution has covered the field.
Continuing, senior counsel emphasised the importance of pleadings in an election petition and argued that issues of pleadings are issues of fair hearing. He stated that the 1st and 2nd respondents by the reply and the accompanying witness statements surreptitiously amended their petition; yet the appellant (as 3rd respondent in the petition) did not have any process to respond to the brand new petition. He posited that leaving such a grievous breach of the right to fair hearing to go unaddressed showed that the tribunal descended into the arena on the side of the 1st and 2nd respondents.
Again, he further posited, with the tribunal deferring its ruling, the offensive documents would be used or be available to be used during the trial with no form of response from the appellant. He lamented that the appellant would go to trial unsure of which of the processes of the 1st and 2nd respondents (petitioners) are valid or not valid.
For the 1st and 2nd respondents, it was the submission of their senior counsel that the resolve of the Tribunal to defer its ruling is in consonance with the law including Sections 36(1), 285(8) of the Constitution (as amended), paragraphs 47(1) and 12(5) of the 1st Schedule to the Electoral Act, 2010 (as amended). He stated that election petition is sui generis and therefore has rules, laws and principles applicable strictly to it. He noted that a determination of the application by the tribunal in appellants favour would amount to a determination of the facts of the petition at the interlocutory state.
He set out the provision of paragraph 47(1) of the 1st Schedule and submitted that the appropriate procedure is to hear and determine motions along with the petition. In support of his position, he referred to and relied on PDP V Alex Otti (2015) LPELR 25788 (CA).
Senior counsel argued that the deferment of ruling by the tribunal does not constitute a breach of appellants fundamental right to fair hearing as the tribunal heard the parties to the motion. He contended that in the exercise of its discretion to determine the best procedure to apply to serve the ends of Justice, the tribunal is only expected to act judicially and judiciously. Reliance was placed on Orji V Onyemere supra. He added that the instant appeal is pre emptive and is aimed at pre judging the tribunals decision.
It was further argued that the tribunals decision to defer its ruling was anchored on the need to manage time and resources and its eventual power to expunge inadmissible evidence while writing its final judgment. Referring to Mobil Producing Nigeria Unlimited V Monokpo (2003) LPELR 1886 (SC), it was submitted that it was for the tribunal to determine the appropriate time to deliver its ruling.
In his reply, appellants senior counsel argued that the principle of not deciding the merits of a substantive case in interlocutory applications does not mean that the merits of interlocutory applications should not be decided at the interlocutory stage; rather it merely means that issues that ought to be decided at the final stage should not be decided at the interlocutory stage.
Resolution
It was argued by senior counsel for appellant that the necessary and inescapable conclusion that flows from the plain and unambiguous wording of Section 285(8) of the Constitution of Nigeria, 1999 (as amended) is that where an interlocutory application does not touch on the jurisdiction of the election tribunal and does not relate to the competence of the petition itself, the tribunal must deliver its ruling at the interlocutory stage so that the parties would proceed to trial certain as to the state of pleadings and all other aspects of the petition that do not relate to the jurisdiction of the tribunal/and or the competence of the petition.
Section 285(8) of the Constitution provides:
Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre election matter or on the competence of the petition itself is raised by a party, the tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment
It is a cardinal rule of constitutional interpretation that where the language of the Constitution is clear, plain and unambiguous, it must be given its plain and evident meaning. See Nafiu Rabiu V State supra, Attorney General of Bendel State V Attorney General of the Federation (1982) 3 NCLR 1, AC V Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223 and Elelu Habeeb V Attorney General of the Federation (2012) 13 NWLR (Pt. 1318) 423. The language of the above provision being plain, clear and unambiguous must be given its plain and evident meaning. The provision has the following features to make it applicable:
(i) there is a preliminary objection or any other interlocutory issue;
(ii) the preliminary objection or issue touches on the jurisdiction of the jurisdiction of the tribunal or the Court in any pre-election matter or
(iii) on the competence of the petition itself; and
(iv) the preliminary objection or any other interlocutory issue is raised by a party.
When the above elements are present the tribunal or Court is mandated to suspend its ruling and deliver it at the stage of final judgment. The provision is a specific provision that governs a specific situation, to wit; preliminary objection or other issues that attack the jurisdiction of the tribunal or the competence of a petition. It can not be extended to govern any application outside its focus. That is to say that it has nothing to do with any application or issue outside the two mentioned therein which is therefore still governed largely by the Courts or tribunals discretion.
It must be noted that every Court or tribunal has inherent power or jurisdiction to control or regulate its proceedings within the confines of the law to meet the ends of Justice. In other words, inherent powers of a Court are powers which enable a Court to effectively exercise the jurisdiction conferred on it. See Erisi V Idika (1987) 4 NWLR
23
(Pt. 66) 503, 518 and Tubonemi v Dikibo (2006) 5 NWLR (Pt. 974) 565, 582. It has been held that a judge is the master of his Court and so long as there is no miscarriage of Justice, he can make such orders or give such directions as are necessary to bring the matter to a just conclusion within the rules of the Court according to law Dapianlong v Dariye (2007) 18 NWLR (Pt. 1036) 239, 286. Section 285 (8) of the Constitution does not take away that inherent power of the Court or the discretion of the Court or tribunal to determine when to deliver its ruling on any objection or interlocutory issue outside those specified by the Sub-section provided it does so before it delivers its final judgment and the discretion is exercised judicially and judiciously.
It is to be noted that by Section 285 (6) of the Constitution, an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. The provision has been held to be mandatory and sacrosanct. See PDP v CPC (2011) NWLR (Pt. 1277) 488 and ANPP v Goni (2012) NWLR (Pt. 1298) 117. To enable the tribunal meet the requirement of the provision, there are provisions in the 1st Schedule to the Electoral Act, 2010 (as amended) relating to time. Examples are paragraphs 47(1), 12 (1) and (5), 14 (2), 16(3). These provisions fortify the inherent power of the tribunal to manage its proceedings to ensure delivery of judgment within time specified by Section 285 (6) of the Constitution. It was therefore within the case management responsibility of the Tribunal to defer the ruling in this instance to the stage of final judgment.
To buttress the point I am making, I shall take the liberty of referring to and quoting extensively from decision of this Court inOrji v Onyemere supra. Therein the appellant (as 1st respondent to the petition) had prayed the tribunal to strike out certain paragraphs of the petition. This was contained in the reply of appellant and a motion on notice to that effect which was heard by the tribunal and the ruling was adjourned till the end of the trial. Mbaba, JCA, opined as follows as pages 36:
It was properly within the discretion of the Tribunal to decide the procedural way to handle the objection, in the light of the limited time at its disposal, to determine the petition.
Such decision forms part and parcel of time management obligation of the Trial Tribunal and no Counsel or party has a right to dictate to the Court or Tribunal on how to go about it.
His Lordship continued at pages 39 40 as follows:
the discretion of the trial Court or Tribunal on when to hear applications and to deliver rulings, vis a vis, the substantive case, resides exclusively with the Court or Tribunal, provided it is exercised judicially and judiciously, being part and parcel of the time management obligation of the trial Court/Tribunal in order to conclude trial within the time frame allowed by law. I do not think the appellate Court can interfere with such discretion or force the Tribunal to deliver its ruling against the run of events in trial Tribunal.
In yet another case, Ikpeazu V Otti (2015) LPELR 25646 (CA), this Court upheld the decision of an election tribunal to defer ruling on motions taken by it to the judgment stage. One of such motions was for an order striking out the petitioners reply for raising fresh issues.
The cases of Mwana v Gomwalk supra and Ado v Ado supra relied upon by appellants counsel to show that a Court must deliver its ruling on an interlocutory application before proceeding to hear the case are inapplicable to the instant matter. The case of Mwana supra was a land matter while the Ado case supra. was a chieftaincy matter which have no constraint as to time as prescribed by Section 285(6) of the Constitution.
It is trite that an election petition is sui generis and is time bound. Therefore citing ordinary civil cases when it comes to management of time by an election tribunal may not be helpful.
It cannot be correct as argued by appellants senior counsel that by deferring its ruling on the motion until the stage of final judgment, the tribunal foisted an amended petition on the appellant through the backdoor. This is because the tribunal is yet to determine the fate of the application and so it cannot be suggested that it has let in the paragraphs of the reply and the written deposition complained of.
The contention of Senior counsel for appellant that by the expression expressio unius est exclusio alterius, Section 285(8) of the Constitution takes away the power of the Court or tribunal to defer its ruling to the stage of the final judgment is not well founded. The expression must be applied with great care and caution. It is applied only where it logically and reasonably follows that the expression of one thing leads to the inference that another is excluded.
This depends on the con Justice. See African Ivory Insurance v Commissioner for Insurance (1998) 1 NWLR (Pt. 532) 50, 56. From the con Justice of Section 285 (8) of the Constitution, it cannot be said that the expression of the categories of issues that it relates to logically and reasonably excludes the inherent power of a tribunal or Court to control its proceedings in circumstances outside those mentioned therein by determining the point to deliver a ruling provided it is done before the delivery of final judgment and without miscarriage of Justice.
In Rabiu v State supra. it was held that expressio unius has very little weight when it is possible to show that there is no intention to effect an exclusio alterius by the use of expressio unius. I think that this is the situation in respect of Section 285(8) of the Constitution.
The Constitution should not be given a narrow construction which is what the construction canvassed by appellants counsel amounts to. Such an interpretation of the Constitution is not permissible. See Attorney General of Ondo State v Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222.
Again, to agree with the interpretation given to Section 285(8) of the Constitution by appellants senior counsel will amount to reading into the provision words which are not found therein. The Courts frown at such a construction.
It was argued that the decision of the Tribunal breached appellants right to fair hearing. Appellants counsel was indeed heard by the tribunal in respect of the motion. He was therefore granted fair hearing by the tribunal. See Orji v Onyemere supra 31 32. Furthermore, the contention by appellants senior counsel that 1st and 2nd respondents have smuggled in new facts and presented a new petition while the appellant can not respond thereto cannot be countenanced by this Court is not well founded. This is because he has not set out the new facts in his brief of argument and so the Court can not go on a voyage of discovery to find out the alleged new facts. The contention anticipates that the tribunal will in its ruling refuse the application. This is speculative and Courts have no room for speculation.
In any event, if the tribunal allows the application of the appellant, the paragraphs of the reply and written deposition complained of will be expunged and struck out, respectively. The appellant would have suffered no loss. If the tribunal refuses the application, and countenances the reply and the written deposition, the appellant will be perfectly entitled to appeal to this Court or file a cross appeal depending on the outcome of the petition. In that case, both the ruling of the trial Court and the judgment will be taken together in one fell swoop and not piecemeal. That is the wisdom in the exercising of the discretion by the tribunal to defer its ruling until the final judgment.
I therefore resolve the lone issue for determination against the appellant.
The appeal lacks merit. It fails and I accordingly dismiss it. I affirm the ruling of the trial Court.
I assess the costs of this appeal at N200,000.00 against the appellant in favour of the 1st and 2nd respondents.
JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege of reading the draft of the lead Judgment prepared by my learned brother, Joseph Eyo Ekanem, J.C.A. All the issues raised in the Appeal are well set out and fully discussed in the said Judgment. I entirely agree with his reasoning and the conclusions reached therein.
Before going into the substance of the Appeal, it is well to state upfront that the findings in the lead Judgment in respect of the preliminary objection to the competence of the Appeal by the 1st and 2nd Respondent, accords with my reasoning on same. I therefore adopt the findings in dismissing the objection.
The facts leading to this Appeal have already been succinctly set out in the lead Judgment. It is therefore unnecessary to rehash same here. Suffice it to state that the crux of the Appeal is the dissatisfaction of the Appellants with the decision of the Tribunal to defer the rendering of a Ruling on the application seeking an Order striking out several paragraphs of the Reply of the 1st and 2nd Respondents to the Answer of the Appellant to the petition, as well as the Witness Statements on Oath attached thereto.
I am in full agreement that the decision taken by the Tribunal, which is now complained against, was rendered in the exercise of its discretion under the inherent powers imbued upon it by Section 6(6) (a) Of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It provides thus:
“(6) The judicial powers vested in accordance with the foregoing provisions of this section
(a)Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law;”
This provision has been the subject and cynosure of judicial interpretation and attention over the years both by this Court and by the apex Court, such that its true meaning and intendment is not left to conjecture, speculation or supposition. The inherent jurisdiction of the Court is to assist the smooth delivery of Justice when it promotes the ends of Justice. It is that power which a Court of law exercises for the purpose of delivering substantial Justice in matters in which it is seised with jurisdiction. It supplements the statutory powers of the Court and dictated by the need for the Court to fulfill itself in order to meet the ends of Justice. It is also exercised in the interest of Justice, where necessary, in a particular case.
Additionally, the inherent jurisdiction or inherent power of a Court is that which is not expressly spelt out by the Constitution or in any statute or rule; but which can, of necessity, be invoked by any Court of record to supplement its express jurisdiction and powers. It is a most valuable adjunct to the express jurisdiction or powers conferred on our Courts of record by the Constitution. Courts, in proper cases, use their inherent jurisdiction to control persons, for instance, in cases of contempt of Court; to control processes, such as when they strike out actions which are frivolous or vexatious or an abuse of process; and to control lower courts or tribunals, such as when they order stay of proceedings. Instances in which Courts have properly exercised their inherent powers are in-exhaustive. In Nwaogu V Atuma (2012) LPELR-19647(SC), the Supreme Court, per Ngwuta, JSC, held:
“Inherent power is inborn in the Court. It enables the Court to deal with diverse matters over which it has intrinsic authority such as procedural rule making, regulating the practice Of law and general judicial housekeeping… Inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred upon it.”
The nature and essence of the inherent power of the Court is further described in the case of Ogwuegbu v Agomuo (1999) 7 NWLR (Pt. 609) 144, 173 thus:
“The inherent power of the Court is that power which is itself essential to the very existence of the Court as an institution and to its ability to function as such an institution. An inherent power has to be inherent in the sense that it forms an essential and intrinsic element in the whole process of adjudication. It is innate in a Court and is not a subject of specific grant by the Constitution or by legislation. That is why inherent powers of a Court cannot be taken away or abridged by legislation, for he who gave, he only can take away. This explains Section 6(6) (a) of the 1979 Constitution (now 1999) which merely recognized and stated the obvious that the inherent powers of a Court of law exist “notwithstanding anything to the contrary in this Constitution” for such powers were no granted by the Constitution. As soon as the Court is established, all its inherent powers adhere and attach to it. Inherent powers of the Court are therefore those powers that are reasonably necessary for the administration of Justice in the Court.”
See also Ajose V IGP (2016) LPELR 40065(CA) 8; Universal Oil Ltd V NDIC (2008) 6 NWLR (Pt. 1083) 254; Tubonemi V Dikibo (2005) 21; Akilu V Fawehinmi (No. 2) 1989) LPELR-339(SC) 136; Erisi V Idika (1987) 4 NWLR (Pt. 66) 503; Adigun V AG Oyo State (1987) 2 NWLR (Pt. 56) 197.
It therefore in view of the wide-ranging powers of the Court under its inherent jurisdiction that the submission of the Appellants must be situated. Learned Senior Counsel for the Appellants contends that the inherent jurisdiction of the Tribunal to defer Rulings on interlocutory applications is circumscribed and limited by Section 285(8) of the Constitution (supra) which states:
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its Ruling and deliver it at the stage of final judgment.”
Thus, he argues that it is only in the two situations streamlined in this provision, id est, where the interlocutory application touches on the jurisdiction Of the Tribunal or on the competence of a petition that the Tribunal would be possessed of power to defer its Ruling till the Judgment stage. However, it is trite law that, in the interpretation of the Constitution and/or statutes touching on the jurisdiction vested in Courts by law, Courts act to jealously guard their jurisdiction, and therefore would construe any law which seeks to exclude or strangulate such jurisdiction vested on them strictly and narrowly in order to reflect both its meaning and the intendment and spirit of the law. See:AG Lagos State V Dosunmu (1989) 3 NWLR (Pt. 111) 614; Comm. for Education, Imo state V Amadi (2013) 13 NWLR (Pt. 1370) 133; FRN V Bankole (2014) 11 NWLR (Pt. 1418) 337; Dapianlong V Dariye (2007) All FWLR (Pt. 373) 81.
It is in this vein that I have therefore given an in-depth look at Section 285(8) of the Constitution (supra). It is clear that from a combination reading of this provision along with Section 6(6) (a) of the constitution, the intendment of the lawmaker is clearly not to restrict the Court or Tribunal from giving full vent to the exercise of its inherent powers/jurisdiction vested in it by the same Constitution. To hold otherwise would be to read into the provision what is not contained in it.
Instead, by a literal and strict interpretation of the provision, it simply made it mandatory on the Court or Tribunal to defer until final Judgment its Ruling on any interlocutory application which touches on the jurisdiction of the Court or Tribunal or on the competence of the petition.
The reason for this is not far-fetched. This provision was evidently introduced into the Constitution by its Fourth Alteration to cure the mischief wherein elections matters before Courts and/or Tribunals have been bogged down by the sheer weight of the series of interlocutory applications filed by parties, specifically in the area of challenges to the jurisdiction of the Court/Tribunal. and/or the competence of the petitions; causing Tribunals to serially determine these at the very expense of the petition itself, which may end up lapsing in view of the limited time within which Tribunals have to deliver their Judgments.
By this provision, it is no longer within the realm Of the inherent powers of the Court or Tribunal to exercise any discretion on whether or not to deliver its Ruling on such an interlocutory application instantaneously or to defer it to be delivered alongside the final Judgment of the Court/Tribunal. It “shall” defer its Ruling on such interlocutory applications as specified within Section 285(8) of the Constitution (supra).
The provision does not thereby curtail the inherent powers of the Court to make orders that would facilitate the hearing and determination of matters before it, which powers are made available to it by Section 6(6) (a) of the Constitution (supra). This must be so by the deliberate use of the words in this provision, to wit: “notwithstanding anything to the contrary in this Constitution”. This clause both anticipates and embraces the provision in Section 285(8) of the Constitution (supra).
I am therefore of the considered opinion that the Tribunal is vested with inherent jurisdiction to defer its Ruling on any other interlocutory application which does not fall within the ambit of Section 285(8) of the Constitution (supra), and may do so as long as it exercises such power judicially and judiciously. Given the circumstances in which the Tribunal has done So as expressed in its Ruling, to wit: the constraints of time wherein it must hear and determine the Petition within 180 days from the date of the declaration of the result of the election (Section 285(6) of the Constitution), I also agree that by giving the parties before it ample hearing before deferring Ruling, the Tribunal exercised its inherent jurisdiction both judicially and judiciously after according them a fair hearing. This Court is therefore loath to interfere with such a judicious exercise of the Tribunal’s discretion. See the decisions of this Court inOrji V Onyemere (2015) LPELR-25652(CA) 36-40; and Ikpeazu V Otti (2015) LPELR-25646(CA).
This is more so that, in the spirit Of the Legal maxim, Ubi jus ubi remedium, where the Tribunal delivers Ruling at the end of trial in favour of the Appellants’ application, it can still expunge the so-called fresh matters/evidence introduced vide the contested Reply to the Answer to the Petition and the additional Witness Statements On oath of the Respondent (as Petitioner). Thus, the Appellant will lose nothing as all the pleadings and evidence challenged by the Appellants in their application will be discountenanced.
However, where the Tribunal rules against the application, then it would have rightly heard the evidence brought in vide the said Reply, and there would be no dilemma faced by both the parties and the Tribunal on account of the fact that time allotted for the hearing of the Petition, to wit: 180 days, has run out. If however, the Tribunal had issued its Ruling on the application at the interlocutory stage and ruled in favour of the application, it would have prevented the Respondent from adducing the evidence contained in its Reply and therefore shut him out of the Judgment seat because nothing more can be done outside the time prescribed by the Constitution. As a result, where an appellate Court is of a contrary view in respect of the application, irreparable damage would have been inflicted on the party who has been forever shut out from fully presenting his case, and the appellate Court would be presented with a fait accompli.
Thus, for the reasons given above and the fuller reasons given in the lead Judgment, which I adopt, I also dismiss the Appeal and endorse the Order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read, in draft form, a copy of the Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, dismissing this appeal. I completely agree with his reasoning and conclusions, which I hereby adopt as mine. I will only make few comments in support.
Upon hearing arguments on the application of the Appellants seeking to have struck out certain paragraph of the Reply of the 1st and 2nd Respondents as Petitioners before the tribunal, the tribunal stated:
” We have taken and heard the 3rd respondent’s application. We are satisfied that it is more expedient for us to defer or suspend our ruling until the final judgment stage, than to deliver it now…
Our ruling in this interlocutory application shall be and is hereby suspended until the final judgment, by God’s grace.”
The 1st and 2nd Respondents in one of the grounds of their preliminary objection to the competence of this appeal contended that the order of the tribunal to defer its ruling was not an appealable decision as the tribunal had not pronounced on the entitlement of the parties to the reliefs on the application. There had been no decision on the complaint of the Appellant. The ruling of the tribunal thereon was described as a mere comment made obiter.
The question is whether the ruling of the tribunal was indeed a mere passing remark made obiter or whether it was a decision that was appealable. In answering this question, it would be expedient to examine established definitions of the relevant words or phrases.
Black’s Law Dictionary, Ninth Edition at page 467, defines a decision in these terms:
A judicial or agency determination after consideration of the facts and the law; esp., a ruling, order, or judgment pronounced by a Court when considering or disposing of a case ”
It also defines an appealable decision thus, page 467:
“A decree or order that is sufficiently final to receive appellate review (such or an order granting summary judgment) or an interlocutory decree or order that is immediately appealable…”
The Section 318 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended), defines a decision as any:
“any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
On the other hand, obiter dictum which in Latin simply means something said in passing. As explained by Nweze, JSC in Omisore & Anor v. Aregbesola & ors (2015) LPELR-24803(SC) at page 34:
“In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided.. ”
And as defined in Black’s Law Dictionary, Ninth Edition, page 1177, it is:
“A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case… ”
See also: National Democratic Party v. INEC (2012) LPELR 19722 (SC); K. R. K. Holdings (Nig) Ltd v. FBN & Anor (2016) LPELR-41463(SC).
Therefore, an appealable decision is one that is sufficiently final to receive appellate review. To have a clearer picture, a follow up question would be: when would a decision be said to be sufficiently final? The agreed judicial position has been that a decision is final when there has been a final determination of the parties to the action; Omonuwa v. Oshodin Anor (1985) LPELR-2654(SC); Gomez Anor v. Cherubim and Seraphim Society Ors (2009) LPELR 1331(SC); General Electric Company v. Akande ors (2010) LPELR-9356(SC). Stretching this further, when the Court determines an interlocutory matter and no other issue arises from the same interlocutory matter for further decision, the decision thereon is sufficiently final to receive appellate review. InIgunbor v. Afolabi Anor (2001) LPELR-1454(SC) at pages 27 29, the Supreme Court, per Karibi-Whyte, J S.C elucidated:
“The determination of the question whether an order is interlocutory or final has never been one of mean difficulty. The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issue appealed against, and not whether the rights of the parties in the substantive action have been finally disposed of – See Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924, U.B.A. Plc. v. Akinsanya (1986) 4 NWLR (Pt.35) 273, (1986) 7 SC 233, Ude v. Agu (1961) I SCNLR 98; Ojora v. Odunsi (1964) NMLR 12; Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617.
A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties, in the action.
However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order See Toun Adeyemi v. Theophilus Awobokun (1968) 2 All NLR 318. The instant ease as rightly submitted by appellant’s Counsel, is an interlocutory motion by the appellant to be co-administrators with the respondents: -The order of the learned trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer, and without any further reference to itself or any other Court of co-ordinate jurisdiction. The order of the learned trial Judge is therefore a final order. An appeal on the said order is as of right under Section of the Constitution 1979.” (Emphasis mine)
In this instant case, the dispute was whether the application of the Appellant should be immediately determined, arguments, having been heard thereon, and not deferred to be delivered alongside the final judgment on the petition. The tribunal exercised its discretion in deciding to defer its decision on the application. There was nothing further to add to this decision by the tribunal to defer its pronouncement on the application. That exercise of discretion by the tribunal was sufficiently final on the issue of whether a decision should immediately be given on the Appellants application or whether the decision on the said application should be deferred. The decision to so defer was an exercise of discretion by the tribunal and final in the circumstance. Until set aside, it has the force of law to the effect that the tribunal would pronounce on the application of the Appellant together with its final judgment at the conclusion of the substantive petition. The ruling of the tribunal was not a mere passing remark made obiter. It was a decision within the meaning of Section 318 of the 1999 Constitution (as amended). see also:PDP v. Peterside & ors (2015) LPELR-41645 (CA); PDP v. Otti & Anor (2015) LPELR-25788(CA).
By virtue of the provisions of Section 246(1) (c) of the 1999 Constitution, as amended, an appeal shall lie as of right from the decisions of the Governorship Election Tribunal. An appeal on the decision of the tribunal could therefore be rightly entertained by this Court. For this reason and for the more comprehensive reasons given by my learned Brother, I also dismiss the preliminary objection.
On the substantive appeal, it is customary for trial Court proceedings to be completely concluded before its decision can be subject matter of appeal. This rule guards against multiple appeals arising out of the same case. It is certainly more efficient to have only one appeal arising from a case in which all of the issues in controversy can be raised and determined holistically. Therefore most appeals emanate from judgments. There is no doubt, however that an appeal may arise from a decision made by the trial Court on an interlocutory issue. The aggrieved party may decided to have their complaint resolved by the appellate Court to enable the lower Court proceed with its direction. This course is usual in matters where a miscarriage of Justice may result otherwise.
In the instant appeal however, I do not see any miscarriage of Justice that the Appellants would suffer. This appeal largely has arisen out of an apprehension that the lower tribunal may take into account alleged fresh facts to which they would have had no opportunity to respond. But, a decision arising from the exercise of discretion by the tribunal to aid their case management cannot be upturned on mere apprehension which has not been founded. I therefore see no merit in this appeal.
For this reason and for the fuller reasons given by my learned Brother, I also dismiss this appeal. I abide by the orders made in the lead Judgment, including the order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Joseph Eyo Ekanem, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
I only wish to make a comment on a persistent trend in election matters and which has also played out in this appeal. This appeal arose out the election petition filed by the first and second Respondents to challenge the return of the Samuel Ioraer Ortom as the winner of the Governorship election that took place in Benue State on the 9th and 23d of March, 2019. Ellie said Samuel loraer Ortom was the second respondent in the petition before the Governorship Election Tribunal of Benue State While the Appellant, the political party that sponsored Samuel loraer Ortom as its candidate in the election, was the third Respondent. It is not in doubt that the interest of the Appellant and that of its candidate in the election arc the same in the petition pending in the lower Court, and not different, and this fact was confirmed by the learned senior Counsel for the Appellant in the course of hearing this appeal.
However, rather than pursue such same interest jointly, the persistent trend has been for a political party and its candidate to duplicate efforts and inundate the Court with multiple processes seeking to achieve the same goal. This is exactly what played out in the present case. The Appellant and its candidate filed separate Replies to the Petition in the lower Court and the first and second Respondents filed different Replies to their separate Replies. The Appellant and the candidate conceived that a large portion of the Replies filed by the first and second Respondents were inappropriate
On the ground that they contained new facts and that the additional and new witness statements on oath accompanying the Replies were not proper. Rather than file one application seeking to strike out the inappropriate paragraphs of the Replies and the witness statements on oath, they filed separate motions thereon. The lower Court heard the separate motions and delivered different Rulings deferring the decisions on the motions till the final stage of judgment on the petition.
The Appellant and its candidate were dissatisfied with the Rulings of the lower Court for the same reasons, but rather than file a joint appeal to this Court against the Rulings, they filed separate appeals. While the appeal of the candidate is Appeal No CA/’MK/EP/GOV/04/2019, this one is Appeal No CA/MK/EP/GOV/05/2019 and both appeals raised and canvassed the same issues for determination such that the resolution of one of the appeals effectively resolves the other one. Now, while this approach of duplicating motions and appeals may soothe the egos of the Appellant and its candidate, and those of their Counsel, it is very selfish and antithetical to an efficient and effective administration of Justice system. It clogs up the system as the Courts must to attend to the duplicated processes and it constitutes a big strain on the already stretched and scarce resources of the Courts. The Court had to save itself and its processes and system from such a self centered approach by parties that have a common interest in the subject matter of an action, aided by their Counsel.
It was in this Wise that in the case of Peoples Democratic Party Vs Peterside (2016) 7 NWLR (Pt 1512) 574, where a political party and its candidate filed separate appeals to Canvass the same issues, the Supreme Court commented thus:
“This appeal has the same base as in the decision of the judgment of the Governorship Election Tribunal of October, 2015 as the appeal number SC. 1002/2015 between the parties. Since the appellant in this appeal is the political party which sponsored the respondent as its candidate to Contest the Gubernatorial election in Rivers State whose interests are the same in the election, there is no reason in my view, that the parties would file and pursue separate appeals in this matter. This is because as far as the interest of the candidate and the political party sponsoring him are concerned, their interests in the election are not separate to justify the filing and pursuing separate processes in Courts.”
The Supreme Court went beyond commenting on such approach in the case of Bukoye Vs Adeyemo (2017) I NWLR (Pt 1546) 173. This was a chieftaincy dispute and a candidate and the Ruling House that sponsored him, and who were both defendants in the trial Court with same interest, filed separate appeals against the decision of the Court and they canvassed the same issues in the appeals. The Supreme Court raised the question of whether the multiple appeals amounted to an abuse of process suo motu and it invited Counsel to the parties to address on it, The Supreme Court held that the appeals constituted an abuse of process and it dismissed them.
The present position of the law is that where parties with the same interest in a subject matter, or whose interests in a subject matter are subsumed into each other, are joint defendants or respondents in a lower Court and judgment is given against them, and one of the parties appeals against the judgment and designates the other party as a respondent in the appeal, any other subsequent appeal filed by other party With the said joint interest, or subsumed interest, Will amount to improper use of the appellate process Guruyel vs Bara (2018) LPELR 44399(CA). This is so irrespective of whether the party possesses an exercisable right of appeal and this is because it is recognized that an abuse Of process lies both in the proper use and improper use Of the judicial process in litigation. The point was made by the Supreme Court in Bukoye Vs Adeyemo supra thus:
“There is no iota of dispute that parties to any suit have unfettered right of appeal against the decision of the trial Court to the Court below and further to this Apex Court as provided by Section 246 and, 233 of the Constitution of the Federal Republic of Nigeria 1979 and 1999 (as amended) (the Constitution for short) respectably. At any rate, it is my considered view that even though the Constitution provides right of appeal to any party by decision of a Court, that does not however give such aggrieved party the right to abuse the process of the Court When exercising such right of appeal. It is trite law, that rights of appeal are exercised according to law, rules and procedures governing such appeal. In other words, it is incumbent upon the litigant to follow the law, and procedure governing the exercise of such right of appeal one of which is to guard against abusing the process of Court.
Similar statements were made by the Supreme Court in the cases of Agbaje Vs Independent National Electoral Commission (2016) 4 NWLR (Pt 1501) 151, Ladoja Vs Ajimobi (2016) 10 NWLR (Pt 1519) 87. This Court raised the issue of abuse of process suo motu at the hearing of this appeal and it requested counsel to the parties to address on it. I am at one with the lead judgment that in view of the appeal filed by its candidate, Samuel loraer Ortom, in Appeal No CA/MK/EP/GOV/04/2019, this present appeal by the Appellant to canvass the same issues and against a similar Ruling of the lower Court amounts to a clear abuse of Court process.
It is pertinent to remind lawyers that the administration of Justice and the Justice delivery system are in the business of service delivery to the members of the public, Thus, it behooves every stakeholder in the Justice system to take all necessary Steps to promote a cost effective, timely and efficient system so as to engender public confidence in Our Justice system. We must never lose sight Of the fact that Justice rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone Of human togetherness, Justice is the condition in which the individual is able to identify with society, feel at One with it and accept its rulings. The moment members Of the society lose confidence in the System of administration Of Justice, a descent to anarchy begins. I have consistently emphasized this point and have severally referred lawyers to the eternal words of a great jurist, J Wesley McWilliams, who writing in an American Bar Association Journal in January 1955 (41 ABA 1 8) wrote in an article he tided “The Law as a Dynamic Profession” thus:
“We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling, It has rewarded us with success and with prestige and leadership in our communities. It has given much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our with whom we have cemented warm friendships and enjoyed happy for these blessings, We cannot but have a sense of gratitude and of Obligation. The most productive, unselfish and wholly repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the of the profession.”
It is hoped that lawyers will tow this line of honour and integrity and contribute their share to increasing the effectiveness of our judicial system, rather than clogging it with useless, baseless, selfish and egoistic litigations.
I agree that there is no iota of merit in this appeal and I hereby dismiss same. I affirm the decision in the Ruling of the Governorship Election Tribunal Of Benue State delivered in Petition No EPT/BN/GOV/01/2019 by the Chairman and Members of the Tribunal in respect of Motion No EPT/GOV/01/M7/2019 on the 3rd Of June, 2019. I abide the order on costs in the lead judgment.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead Judgment of my learned brother JOSEPH EYO EKANEM, JCA. I agree with the conclusion reached in the judgment. The ruling of the Tribunal is also affirmed by me. I abide by the order as to costs.
Appearances:
Oba Maduabuchi, SAN with him, Chief Prof. Agbo J. Madaki, Messrs S.A. Udaga, Emeka Okoro and Chief P.S. OchijeleFor Appellant(s)
K.K. Eleja, SAN with him, Messrs S.A. Solegbere, Issa Danzaria, Prof. B.A. Omipidan and A.O. Mohammed for 1st and 2nd respondents.
Uyi Igunmu, Esq. with him, Genesis Francis, Esq. and Nguevese Tine-Tur, Esq. for 3rd respondent.
John Shisi, Esq. with him, Messrs A.O. Apeh, Victor Iorshorger, B. C. Abel and Alfred Tijah for 4th respondentFor Respondent(s)
Esq. and Nguevese Tine-Tur, Esq. for 3rd respondent.
John Shisi, Esq. with him, Messrs A.O. Apeh, Victor Iorshorger, B. C. Abel and Alfred Tijah for 4th respondentFor Respondent
