PRINCE HON. NICHOLAS UKACHUKWU V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC & ANOR.
(2013)LCN/5837(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of January, 2013
CA/OW/180/2012
RATIO
COURT: NATURE OF BIAS AND CONSEQUENCE OF THE IMPUTATION OF BIAS OF A TRIAL JUDGE
As pointed out by the learned senior counsel for the 2nd Respondent in this case, the admonition of Ndoma-Egba, JCA (as he then was) in the case of Denge vs. Ndakwoji (supra) at 233 was to the effect that:
“The Appellant has made the allegation of bias, wrongly or rightly. This cannot be exorcised. Bias is a state of mind, incapable of precise definition or proof, whatever impression it may convey. In our judgment (Benin Division) in Lieutenant Colonel Omoniyi vs. Central Schools Board & Ors. (1988) 4 NWLR (Pt. 89) 448 at 451, we stated:
“The imputation of bias of any kind to a trial Judge including favouritism and selective treatment, does not only diminish the stature and integrity of the judge but destroys the foundation of his judgment, however sound and consistent with the Rule of Court, pleadings and evidence.”
“The safest thing to do is for a trial Judge to pull out from the case on the mention of bias. Such a course of action will be reassuring to the parties”. PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: WHAT ACTIVATES THE JURISDICTION OF THE APPELLATE COURT TO ADJUDICATE
I do agree with the learned counsel to the Respondents that it is the Grounds of Appeal that activate the jurisdiction of the appellate court to adjudicate on matters placed before it in an Appeal.
See: Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156, Osahon vs. FRN (2003) 16 NWLR (Pt. 845) 89 at 117. PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: INGREDIENTS FOR THE INVOCATION OF THE COURT OF APPEAL UNDER SECTION 15 COURT OF APPEAL ACT
two vital ingredients for the invocation of the Section 15 power of the Court of Appeal are missing in this case.
The first is that the lack of present and actual jurisdiction by the court below to try the substantive suit as of now prevents the Court of Appeal from hearing the substantive Application. This is closely related to the principle that an appeal is by way of re-hearing and that the Court of Appeal would not as a general rule pronounce on an issue that has not been pronounced upon or refused to be pronounced upon by the court below.
For example, in A-G. Anambra State vs. Ephraim Okeke & Ors. (2002) (Pt. 112) 175 at 194, the Supreme Court stated that the power of the Court of Appeal under Section 16 (now Section 15) of the Court of Appeal Act is for the purpose of rehearing and not for the Court of Appeal to hijack the overall jurisdiction of the High Court in matters which are not in issue before it.
Truly, and as pointed out by the learned counsel to the Respondents, this court can only assume jurisdiction over the substantive suit if the court below had made a pronouncement touching on the substantive matter either determining same on the merit or declining to determine same pursuant to which an Appeal was filed. It is only then that the court of Appeal can looking at the Grounds of Appeal filed in respect of the said pronouncement of the court below and assume jurisdiction to hear the substantive matter in the appeal.
In the case of Ajayi vs. N.U.R.T.W (supra) at 452, the court held:
“Without equivocation, I am of the view and I hold that none of the conditionalities is present in the instant matter to warrant the invocation of this court’s power under the provision of Section 16. The lower court is still at cross-roads regarding the determination of its legal power to adjudicate on the suit filed before it by the applicant and his co-plaintiffs. The real issue raised by the said plaintiffs at the lower court have neither been considered nor pronounced upon one way or the other. Hence, there is no judgment of the lower court which could be appealed and from which grounds of appeal could flow for reappraisal by this court…..”
In the same tone as the Court of Appeal in the case of Ajayi vs. N.U.R.T.W (supra) Akintan, JSC speaking for the Supreme Court in the case of Milad, Ekiti State vs. Aladeyelu (2007) 14 NWLR (Pt. 1055) 619 at 642 held thus.
“I agree with the Appellants counsel, that the Court of Appeal has no business whatsoever of deciding the issue raised in the main trial, in claim 6, 7 , 8, 9 and 10, by setting aside the declaration registered in 1995. These issues should await the decision of the trial court when it considers all the claims on the basis of the evidence to be called by parties. As mentioned above, the issue before the Court of Appeal was an interlocutory appeal and the matter was not heard or decided on the merits. There was no order of the trial court concerning the appointment of the 6th Appellant nor was there any decision in respect of the new declaration for the Court of Appeal to assume jurisdiction to intervene … ..The jurisdiction of the Court of Appeal is appellate and in the circumstances of this case, the Court of Appeal has no original jurisdiction to make the orders it made.”
The second ingredient missing in this case for the invocation of the Section 15 power of the Court of Appeal lies in the conual interpretation of the provision itself. Thus in Inakoju vs. Adeleke(supra) at Pp. 613 – 614, Niki Tobi JSC said inter alia
“…..The Section commences in the following terms:
“the Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal.”
The word “real” in the con means actual. It also means true. The word “question” conually means the issue involved in the appeal. The word “controversy” means the actual issue in dispute in the appeal. Accordingly, the real question in controversy means the actual issue in dispute in the appeal. The real issue in the appeal must be clearly donated by the ground or grounds of appeal, since that is the legal basis of the complaint by an Appellant: Therefore, before a Section 16 power could be invoked for the determination of the real question in controversy in the appeal, that question must be a ground of appeal.”
Also, in the case of Nneji vs. Chief Chukwu (1988) 3 NWLR (Pt. 81) 184, the Supreme court held that the general powers conferred on the Court of Appeal by Section 16 includes the power to make any order necessary for determining the real question in controversy in the appeal.
In interpreting the Section, Oputa, JSC, said at page 206:
“It is thus clear that the prior responsibility of the Court of Appeal (as well as other courts) is to hear the parties out, not to shut out any part to hear the merits of the case or appeal and decide according to those merits.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: NATURE OF APPEALS IN RELATION TO WHEN THE APPELLATE COURT WILL ASSUME JURISDICTION
It is trite that appeals are by way of rehearing. This court can only assume jurisdiction over the substantive suit if the court below had, made pronouncement touching on the substantive matter. It is only then that the Court of Appeal can, looking at the Grounds of Appeal filed in respect of the said pronouncement of the court below, assume jurisdiction to hear the substantive matter on appeal. See Ajayi vs. N.U.RT.W. (2009) 8 NWLR (PT 1144) 423 at 452, wherein it was held as follows:
“Without equivocation, I am of the view and I hold that none of the conditionalities is present in the instant matter to warrant the invocation of this court’s power under the provision of section 16. The lower court is still at cross-roads regarding the determination of its legal power to adjudicate on the suit filed before it by the applicant and his co-plaintiffs. The real issues raised by the said plaintiffs at the lower court have neither been considered nor pronounced upon one way or the other. Hence, there is no judgment of the lower court which could be appealed and from which grounds of appeal could flow for reappraisal by this court.” PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
PRINCE HON. NICHOLAS UKACHUKWU
(For himself and on behalf of the other Aspirants for the positions
of Senators and Members, Federal House of Representatives for
Anambra State on the platform of the Peoples Democratic Party
(PDP) and who were successful in the primaries conducted by
Senator WAKU on the 7/1/2011 and 8/1/2011 and thus became
Candidates of the party in the general election slated for April, 2011 For positions of Senate and Federal House of Representatives to
represent Anambra State in the same and whose names are clearly set out in the verifying affidavit in support of this application and in the
grounds. – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. DR. ANDY UBA
(Sued for himself and on behalf of the other persons who
lay claim to their names having been purportedly
submitted by a factional leader of the PDP, Anambra State
Branch, Chief Benji Udeozor, to the 1st Respondent through
a letter signed by the same Chief Benji Udeozor and dated
13/1/2011 but actually received by INEC on 17/1/2011 – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment): In the main, this is an interlocutory appeal which arose from the Ruling of M.G. Umar, J. in Suit No. FHC/UM/CS/092 delivered on 21/3/2012. The Ruling arose from an application filed by the 2nd Respondent in the substantive suit (Dr. Andy Uba) in a motion on notice dated and filed on 20th February 2012, where he sought the following orders.
“1. An order that Justice. M.G. Umar who is the presiding Judge, in Suit No. FHC/UM/CS/92/2011 (Formerly Suit No. FHC/AWK/CS/05/2011, pending at the Federal High Court Awka and Suit No. FHC/ASB/CS/169/2011 pending at the Federal High Court Asaba between Prince Hon. Nicholas Ukachukwu vs. Independent National Electoral Commission (INEC) and Dr. Andy Uba disqualifies himself and decline from continuing hearing Suit No. FHC/UM/CS/92/2011 pending in his court at Federal High Court Umuahia.
2. And for such order or other orders as the Honourable court may deem fit to make in the circumstances.”
Before his application for recusal of 20th February 2012, the 2nd Respondent in the substantive suit had earlier on filed an appeal from the Ruling of the lower court presided over by the same Hon. Justice M.G. Umar delivered on the 1st day of February, 2012 in the same suit whereby the said Dr. Andy Uba was joined as 2nd Respondent in the Suit. That appeal, which was entered in the Court of Appeal as CA/OW/21/2012. Between Dr. Andy Uba vs. Prince Nicholas Ukachukwu & Anor. complained of impropriety of joining Dr. Andy Uba in the Suit but in the process also raised the issue of bias against his Lordship Hon. Justice M.G. Umar.
Meanwhile, the grounds upon which the 2nd Respondent’s application of 20/2/2011 for recusal was based as contained in the motion on notice before the court below filed by the learned senior counsel for the 2nd Respondent/Applicant, Arthur Obi Okafor SAN were as follows:
“i. There are strong evidence of bias and likelihood of bias being meted by the Trial Judge against the 2nd Respondent/Applicant in the suit.
ii. The trial Judge ever before hearing the application for joinder on the merits stated openly in the court that “he wants all the parties before him” before hearing the issue of jurisdiction. The Trial Judge in making the above pronouncement had already ruled against the 2nd Respondent/Applicant before hearing the application for joinder.
iii. The trial Judge has studiously and deliberately avoided the issue of jurisdiction brought before the court through motion on notice.
iv. On 15/2/2012, the trial Judge ordered Chief E.E. Egbunonu who was counsel to the former 2nd Respondent Prince Ken Emeakayi to personally file the notice of discontinuance on behalf of 2nd Respondent notwithstanding that the said Chief E.E. Egbunonu prayed the court that taking into consideration his background knowledge of his client and the nature of the instruction given to him by the 2nd Respondent, the notice of discontinuance should be personally signed by the 2nd Respondent.
v. The court refused the application and in its unseen urgency to hear and determine the suit against the present 2nd Respondent/Applicant volunteered and made available the services of the Registry of court to enable Chief Egbunonu to prepare and file notice of discontinuance on behalf of Prince Ken Emeakayi.
vi. The court stood the matter down for one (1) hour to enable Chief Egbunonu to personally prepare and file notice of discontinuance on behalf of Prince Ken Emeakayi.
vii. The application for discontinuance was not moved by Chief Egbunonu but P.I.N IKwueto SAN assumed and/or took over the brief of Chief E.E. Egbunonu, moved the application and it was granted by the trial court without qualms.
viii. The 2nd Respondent/Applicant was ordered to be joined in this suit on 1/2/2012. The 2nd Respondent/Applicant appealed against the order of the court joining him as Respondent in the suit. The 2nd Respondent/Applicant filed Notice and Grounds of Appeal and motion for stay of proceedings.
ix. The court has refused to make available all the Rulings to stultify the 2nd Respondent’s effort to appeal against the said rulings.
x. The court in most unseen haste wants to hear the suit and give judgment against the 2nd Respondent/Applicant notwithstanding the pendency of the application for stay of proceedings pending in the Court of Appeal.
xi. Specifically, a motion to dismiss the said suit dated 7/3/2011 and filed same date by the 1st Respondent has been languishing in the records of court without the Honourable Court given even a scant attention to it.
xii. Since 9/02/2012 when the motion for stay of proceedings was brought to the attention of the Court, the trial court has continued to hear other applications, treating the motion for stay of proceedings at the Court of Appeal as non-event.
xiii. That the trial court wants to hear the substantive application for judicial review without adjourning the matter to abide the outcome of motion of stay of proceedings pending in the Court of Appeal.
xiv. The Respondents particularly the 2nd Respondent/Applicant has lost confidence in the willingness, capability and preparedness of the trial judge to conduct a hearing as an impartial arbiter that will satisfy the attribute of fair adjudication.
xv. The trial Judge has shown personal interest in the outcome of matter.”
In a Ruling on the 2nd Respondent’s application, the learned trial Judge held at pages 3 – 4 of the Ruling as follows:
“I have read the application urging me to disqualify myself from hearing the matter in Suit No. FHC/UM/CS/92/2011, the grounds upon which the application was made and the affidavit in support as well as the written address of counsel. I have also gone through the reply on point of law.
I have read the oral argument of counsel for the Applicant/Respondent in this matter, one basic fact from the argument of counsel and the evidence before me is that an appeal has been entered before the Court of Appeal.
Ground seven of the grounds of appeal now pending before the Court of Appeal is a ground against my humble self on the issue of bias. Any pronouncement in respect of this issue is likely to come into conflict with whatever pronouncement that would be made by the Court of Appeal in respect of the same issue…
I am very much aware that the Record of Proceedings of this court has been received in the Court of Appeal as it was canvassed before this court that date has been fixed for the hearing of the appeal. . . .It should be noted here that Order 4 Rule 11 did not qualify the appeal whether final or interlocutory but, that “every application shall be made to the Court” including the present application before this Court.
I hereby order that the Registry of this court should transmit this application to the Court of Appeal in accordance with Order 4 rule 11 of the Court of Appeal Rules, 2011 see the case of Amao vs. Alabi (2003) 12 NWLR (Pt. 835) Pg.537 at 555 paragraph E – G.”
Dissatisfied with the above Ruling by the learned trial Judge, Prince Hon. Nicholas Ukachukwu, the applicant in the substantive application for judicial Review in Suit No. FHC/UM/CS/92/2011 through his counsel P.I.N. Ikwueto SAN filed a Notice of Appeal containing two (2) grounds of appeal before this court on 5th July 2012. The grounds of appeal together with their particulars are stated hereunder.
“The learned trial Judge erred in law and thereby occasioned a miscarriage of justice in failing to determine on the merits the Motion on Notice dated and filed on 20/2/2012 seeking to disqualify the learned trial court from hearing and determining the substantive Judicial Review Proceedings (the substantive suit).
Particulars Of Error
“The learned trial court noted that “one basic fact from the argument of counsel and the evidence before me is that an appeal has been entered before the Court of Appeal”.
“The learned trial court omitted to take into account the abuse of process inherent in the Motion seeking to disqualify the learned trial court from hearing and determining the substantive suit which is an application for Judicial Review against the refusal of the 1st Respondent (INEC) to accept and act on the list of sponsored candidates forwarded/submitted by the Peoples Democratic Party (PDP) for the National Assembly Elections for Anambra State.
Simultaneous with the filing of the Motion seeking to disqualify the learned trial court from hearing and determining the substantive suit, the 2nd Respondent (Dr. Andy Uba) also petitioned the National Judicial Council (NJC) seeking the same reliefs/prayers as sought in the Motion dated and filed on 20/2/2012.
The Motion dated and filed on 20/2/2012 did not disclose any reasonable ground of bias by the learned trial court against 2nd Respondent.”
GROUND TWO
Error In Law
“The learned trial court erred in law and reached a wrong conclusion when it held “ground seven of the grounds of appeal now pending before the Court of Appeal is a ground against my humble self on the issue of bias. Any pronouncement in respect of this issue is likely to come in conflict with whatever pronouncement that would be made by the Court of Appeal in respect of the same issue” and thereby ordered “that the Registry of this court should transmit this application to the Court of Appeal.”
Particulars Of Error
“1. The appeal pending before the Court of Appeal and in respect of which the learned trial court noted that “the Record of Proceedings of this court has been received in the Court of Appeal” is the appeal against the Ruling of the learned trial court dated 1/2/2012 vide which the 2nd Respondent was joined as a party to this Suit.
2. Subsequent to his joinder as a party to this suit, the 2nd Respondent sought and obtained the leave of the learned trial court for an extension of time to file his Counter-Affidavit and Written Address in opposition to the substantive suit.
3. The 2nd Respondent as well as the other parties to this suit have filed their respective counter-affidavits and written argument in opposition to the substantive suit.
4. Order 4 Rule 11 of the Court of Appeal Rules relied on by the learned trial court relates to the pending appeal against the joinder of the 2nd Respondent as a party to this suit and not the substantive suit.”
The appeal of Prince Hon. Nicholas Ukachukwu was entered in this Court as Appeal No. CA/OW180/2012 and it is properly so called, the appeal in this case. The parties in the appeal exchanged briefs of argument.
Meanwhile, the pending appeal between Dr. Andv Uba vs. Prince Hon. Nicholas Ukachukwu & Ors. on the issue of the joinder of Dr. Andy Uba in the substantive suit that is Appeal No. CA/OW/21/2012 was struck out on a preliminary objection by the Respondent to the appeal on 21/6/2012 for incompetence.
Now, by a Motion on Notice dated 29th day of September, 2012 and filed on 3/10/2012. The Respondent/Applicant in appeal No. CA/OW/180/2012, Dr. Andy Uba prayed this court for “An Order of the Honourable Court striking out the Appellant’s/Respondent’s Appeal No. CA/OW/180/2012. Between Prince Nicholas Ukachukwu vs. INEC & Anor.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.” The grounds on which that application is based are as follows:
“(a) The present appeal No. CA/OW/180/2012: Between Prince Nicholas Ukachukwu vs. Independent National Electoral Commission (INEC) & Anor., was being maintained by the herein Appellant as result of his grievances against the ruling of the court below wherein the said court below ordered that a certain application to disqualify Hon. Justice M. G. Umar be transmitted to the Court of Appeal.
(b) That the application for Hon. Justice M.G. Umar to disqualify himself was predicated on ground of bias against his Lordship. His Lordship, Hon. Justice M.G. Umar ordered that the application aforesaid be transmitted to the Court of Appeal where the issue of bias against him had been raised as one of the Grounds of Appeal in the Appeal, (then pending at the Court of Appeal) before your Lordships.
(c) The relevant appeal at that time which the Court of Appeal was siesed of, and which was contemplated by the ruling of Hon. Justice M.G. Umar (now on Appeal) was Appeal No. CA/OW/21/2012. Between Dr. Andy Uba vs. Prince Nicholas Ukachukwu & Anor.
(d) The order made by the court below for the transmission of the application for the Hon. Justice G. Umar to disqualify himself was hinged on the pendency of Appeal No. CA/OW/21/2012 adjudged by the Court below to have been entered at the Court of Appeal.
(e) The said Appeal No. CA/OW/21/2012 became lifeless when the Court of Appeal in its judgment delivered on 21st day of June, 2012 struck out the said Appeal for want of competence.
(f) With the striking out of Appeal No. CA/OW/21/2012, there was no platform by which the Court of Appeal would consider the application (for Justice M.G. Umar to disqualify himself) ordered by the court below to be so transmitted and to be determined in Appeal No. CA/OW/21/2012.
(g) The application for Hon. Justice M.G. Umar to disqualify himself dated 20th February, 2012 and filed on same date which was ordered to be transmitted to the Court of Appeal vide the ruling of the Court below prays for the following:
“AN ORDER that Justice M.G. Umar who is the presiding Judge in Suit No. FHC/UM/CS/92/2011 (Formerly Suit No. FHC/AWK/C/05/2011, pending at Federal High Court Awka and FHC/ASB/CS/169/2011 pending at Federal High Court, Asaba) Between Prince (Hon.) Nicholas Ukachukwu vs. Independent National Electoral Commission (INEC) and Dr. Andy Uba disqualifies himself and declines from continued hearing Suit No. FHC/UM/CS/92/2011 pending in this court at Federal High Court Umuahia.”
(h) The Hon. Justice M.G. Umar against whom the said application was directed at has been transferred to another Judicial Division with Hon. Justice F. A. Olubanjo now the presiding Judge of Federal High Court Umuahia.
(i) On account of the events catalogued above, the Appellant’s Appeal No.CA/OW/180/2012: Between Prince Nicholas Ukachukwu vs. Independent National Electoral Commission (INEC) & Anor. has become academic, moot and incompetent.”
The Respondent/Applicant’s Motion on Notice is indeed in the nature of a preliminary objection to the competence of the appeal by Prince Hon. Nicholas Ukachukwu. I will therefore, first, consider and deliver a ruling on the application and if necessary proceed to consider Appeal No. CA/OW/180/2012. The relevant processes filed by the parties in relation to the respondent/Applicant’s Motion on Notice are as follows:
1. Motion on Notice dated 29/12/2012 and filed on 3/10/2012 – by Arthur Obi Okafor SAN, which contained.
(a) Affidavit in Support of Motion deposed to by one Okonye Best Okonye Esq.
(b) Exhibit ‘A’ Ruling of M.G. Umar J. in Suit No. FHC/UM/M/92/11 delivered on 1/2/2012.
(c) Exhibit ‘B’ Amended Notice of Appeal dated 4/4/2012 filed pursuant to Order of court made on 2/4/2012 in Appeal No. CA/OW21/2012.
(d) Exhibit ‘C’ Motion on Notice dated 20/2/2012 with Annexures.
(e) Exhibit ‘D’ CTC of the Ruling of M.G. Umar J. delivered on 21/3/2012.
(f) Exhibit ‘E’ Ruling of the Court of Appeal in Appeal No. CA/OW/21/2012 delivered on 21/6/2012.
(g) Exhibit ‘F’ Notice of Appeal in Suit No. FHC/UM/CS/92/2011, Appeal No. CA/OW/180/2012 dated 5/7/2012.
2. Counter-Affidavit of the Appellant/Respondent to the Motion on Notice dated 29th September 2012 filed on 12/10/12 – deposed to by one Nnamdi Anyachebelu.
3. Further Affidavit in Support of the Motion To Strike Out Appeal No. CA/OW/180/2012 filed on 15/10/12 deposed to by Okonye Best Okonye.
4. 1st Appellant’s further Counter-Affidavit to the 2nd Respondent Motion on Notice seeking to strike out the Appeal filed on 20/11/12 deposed to by Gabriel Ogugua.
5. 2nd further Affidavit of the 2nd Respondent/Applicant in support of the motion to strike out Appeal No. CA/OW/180/2012 filed on 7/11/12 deposed to by Okonye Best Okonye with three(3) Annextures/Exhibits AA, BB and CC.
6. Written Address of the 2nd Respondent/Applicant in support of the Application dated 29th day of September, 2012 and filed on 3rd October 2012 for the striking out of the Appeal dated 29th October 2012 and filed on 30/10/12.
7. Written Address of the Appellant in opposition to the 2nd Respondent motion dated 29th September 2012 and filed on 3/10/2012 dated 7/10/2012 and filed on 8/11/12.
8. 2nd Respondent/Applicant Reply on Law to the Appellant’s/Respondent’s Written Address dated 7/11/2012 – dated 16/11/12.
On Monday, the 26th day of November, 2012 Arthur Obi Okafor SAN moved the 2nd Respondent’s/Applicant’s motion for striking out of the Appellant’s appeal whereby the parties adopted and relied on their various aforementioned processes including their Written Addresses.
The 1st Respondent, that is the Independent National Electoral Commission (INEC) did not file any processes in respect of the 2nd Respondent’s Applicant’s Motion on Notice but as it would be later seen, it filed a Respondent’s brief in the main appeal.
Learned senior counsel for the 2nd Respondent nominated only one issue for determination in the motion on notice, to wit:
“Whether on the account of the Grounds listed by the 2nd Respondent in his application for striking out dated 29th September, 2012 and filed on the 3rd of October, 2012, has the present Appeal No. CA/OW/180/2012 not become moot, academic and incompetent.”
On the sole issue, learned senior counsel for the 2nd Respondent submitted that a calm and dispassionate consideration of the ruling of the court below shows that the decision of Hon. Justice M.G. Umar to transmit the 2nd Respondent’s motion (Exhibit D) for determination by Honourable Court of Appeal, Owerri was made contingent to Appeal No. CA/OW/21/2012 which at the material time was pending at the Court of Appeal Owerri. That, the lower court had reasoned in the ruling that since the issue of bias constitutes Ground seven of the 2nd Respondent’s appeal adjudged to have been entered for hearing, it will only be proper for the lower court not to pre-empt the Court of Appeal in its prospective decision on bias.
Learned senior counsel further referred to Ground C, D and E of the 2nd Respondent’s Grounds in support of this application and emphasized that the counter-affidavit sworn to by Nnamdi Anyachebelu deposed in paragraph 5, that “paragraphs F and I of the Grounds relied upon by the 2nd Respondent are false.”
Learned senior counsel surmised that the other Grounds (A, B, C, D, E and G) were not challenged by the Appellant. That, most importantly, the Appellant did not deny paragraphs 1 – 17, 19, 21, 23 and 24 of the supporting affidavit. And, that the cumulative effect of the appellant’s non denial of the said paragraphs are that:
a. The Ruling of the court below transmitting the motion (Exhibit D) on bias to be heard by the Court of Appeal was made contingent to and/or filed to the hearing of Appeal No. CA/OW/21/2012
b. The present Appeal sought to be struck out (Appeal No. CA/OW/180/2012) is directed at the Ruling of the court below (Exhibit D).
c. The platform on which the transmitted application would be decided is Appeal No. CA/OW/21/2012 which has been adjudged incompetent and struck out.
d. The striking out of Appeal No. CA/OW/21/2012 deprived the Court of Appeal of the opportunity of determining or considering the transmitted application thereby practically rendering the Ruling in Exhibit D of no practical value or consequence.
e. Indeed Appeal No. CA/OW/180/2012 ceases to raise live issues between the parties when the issue of bias ordered to be considered in Appeal No. CA/OW/21/2012 could no longer be considered in that Appeal (No. CA/OW/21/2012) as same had been struck out.
Learned senior counsel submitted that the other aspect of the mootness and incompetence of this appeal arising from its being academic can be found in the fact that Hon. Justice M.G. Umar had been transferred to another Judicial Division.
That, the 2nd Respondent’s averment that Hon. Justice F.A. Olubanjo had taken over from Hon. Justice M.G. Umar has not been denied.
Counsel reiterated that the crux of the application (Exhibit C) is to prevent Hon. Justice M.G. Umar alleged to be biased from conducting the substantive suit. That, it was exhibit C that generated the Ruling (Exhibit D) and Appeal No. CA/OW/180/2012 which was obviously a reaction to exhibit D. As it turned out, said counsel, Hon. Justice M.G. Umar is no longer presiding at Federal High Court, Umuahia. He has been replaced by Hon Justice F.A. Olubanjo before whom the substantive suit is now pending. And, that with the transfer of Hon. Justice M.G. Umar, all complaints and reactions as to whether His Lordship Umar J. was biased or not became moot and academic. It will not advance the case of any of the parties for this court to pronounce on the allegation of bias when the Judge against whom the allegation was made is no longer handling the case having been replaced by another Honourable Judge whose actions or inactions are not subject of any Appeal.
He referred to the case of A.C. vs. INEC (2007) 18 NWLR (Pt. 1065).
In summary, learned senior counsel prayed that we find that this Appeal has become academic for the following reasons:
(i) With the transfer of Hon. Justice M.G. Umar to another judicial division, he ceased to preside over the substantive suit.
(ii) The substantive suit is now before Hon. Justice F.A. Olubanjo against whom no Grounds of Appeal lies.
(iii) Sustaining the Appeal as not being moot or academic portends that this court have wrested jurisdiction of the matter from Hon. Justice F.A. Olubanjo against whom there is no complaint on Appeal or otherwise.
(iv) The substantive suit is not before this court but still at the lower court waiting to be re-activated by the Appellant.
(v) The Ruling being complained by the Appellant was not made by Hon. Justice F.A. Olubanjo before whom the substantive matter is pending but by Hon. Justice M.G. Umar whom an allegation of bias was leveled personally against.
(vi) The Ruling directed that the issue of bias raised against Hon. Justice M.G. Umar be determined in an Appeal already entered in the Court of Appeal.
(vii) The contingent appeal adjudged to have been entered under which the issue of bias was to be decided by the Court of Appeal had been struck out.
In conclusion, learned senior counsel for the 2nd Respondent/Applicant urged us to hold that the Appeal No. CA/OW/180/2012 is moot, academic and incompetent and ought to be struck out.
In response to the above position, Mr. P.I.N. Ikwueto SAN of counsel to the Appellant/Respondent also formulated a sole issue for the determination on the Motion on Notice to wit:
“Whether the Appeal No. CA/OW/180/2012 has become academic, moot and incompetent and ought to be struck out.”
Learned counsel for the Appellant/Respondent urged that in making his ensuing submission, this Honourable court will be invited to determine that the 2nd Respondent’s application is a gross abuse of process and ought to be dismissed for the following reasons:
“(a) The Judicial Review proceeding (the suit) was transferred/assigned to Hon. Justice M.G. Umar by virtue of an assignment order made by the Hon. Chief Judge of the Federal High Court.
(b) The assignment/transfer of the suit to M.G. Umar, J. as stated above has not been rescinded nor withdrawn nor is same affected by any transfer of M.G. Umar out of Umuahia Judicial Division.
(c) The allegation of bias made by the 2nd Respondent/Applicant against Umar J., which debarred the learned trial court from hearing and determining the pre-election suit is still alive.
(d) The instant application is a subtle ploy aimed at frustrating the hearing and determination of the substantive appeal.”
Learned senior counsel opined that a consideration of the above four points determine that it is manifest that the instant application is without merit and ought to be dismissed.
Counsel submitted that by the transfer/assignment of the suit by the Hon. Chief Judge of the Federal High Court to M.G. Umar J. the suit was to be heard and determined by Hon. Justice M.G. Umar.
Learned senior counsel for the Appellant/Respondent reminded us that this suit was instituted at the Awka Judicial Division but transferred/assigned by the Hon. Chief Judge Federal High Court to Buba J. sitting at Asaba Judicial Division before the subsequent transfer/assignment to M.G. Umar, J. whilst he was the presiding Judge of the Umuahia Judicial Division.
The suit, counsel said, was not transferred nor assigned to Umuahia Judicial Division.
Learned senior counsel submitted that the correct position of the law is that the practice of transfer/assignment of cases is the administrative function of the Chief Judge of the Federal High Court whereby by administrative fiat a case is transferred/assigned to a particular Judge in person.
On this counsel referred to the case of H.R.H Oba Folagbade Olateru Olagbegi (the Olowo of Owo) & Anor vs. His Excellency, the Governor of Ondo State (2007) LPELR -CA/B/222/2001
Counsel submitted that the instant suit, having been assigned by administrative fiat of the Chief Judge of the Federal High Court to Umar, J. the argument that with his transfer out of the Umuahia Judicial Division, the allegation of bias made by the 2nd Respondent against his Lordship, Umar, J. has been overtaken is totally misconceived.
Counsel reasoned, that the instant case was assigned by the Chief Judge of the Federal High Court by his “administrative fiat” to Umar, J., the allegation of bias made against the learned trial Judge will continue to hang as the proverbial sword of Damocles and effectively debar Umar J. from carrying out the duties assigned to him by the “administrative fiat of the Chief Judge of the Federal High Court. In effect, he said, the instant suit will remain undetermined!
Mr. P.I.N. Ikwueto SAN for the Appellant/Respondent submitted that save for the assertion that “Hon. Justice M.G. Umar has been transferred to another Judicial Division……Hon. Justice F.A. Olubanjo had taken over from Hon. Justice M.G. Umar” the 2nd Respondent has not produced any evidence that the suit has been re-assigned and re-transferred from Hon. Justice M.G. Umar to Hon. Justice F. A. Olubanjo.
Furthermore, said counsel, it is not the contention of the 2nd Respondent/Applicant that the assignment of the case to M.G. Umar, J. by the administrative fiat of Hon. Chief Judge of the Federal High Court has been rescinded/withdrawn nor ceased.
The principle, said counsel, is now firmly established that he who asserts must prove and the onus is on the 2nd Respondent/Applicant to provide evidence that the assignment of the case to M.G. Umar, J. has ceased and or withdrawn and or the case rescinded. Indeed, according to counsel, in the absence of any evidence that the case has now been reassigned by the Hon. Chief Judge of the Federal High court to F.A. Olubanjo, J. the allegation of the 2nd Respondent/Applicant that this suit is now pending before F.A. Olubanjo, J. will be baseless and unsubstantiated.
Learned senior counsel referred to the case of N.A. Williams & Ors. vs. Hope Rising Voluntary Funds Society (1982) 2 SC P.70 and submitted that the Applicant/Objector having failed to place sufficient material before this Honourable Court for the exercise of its discretion, the Applicant/Objector must fail.
He submitted, that it is safe and correct to state that this appeal is alive and not academic, as the applicant did not place materials from which the court can determine that Hon. Justice Umar’s fiat is not alive or that Hon. Justice F.A. Olubanjo has a fiat to do the case. Fiat, he said is not given to court but to individual Judges.
Learned senior counsel for the Appellant/Respondent submitted that if this Honourable Court upholds the argument that the assignment of the suit by the administrative fiat of the Hon. Chief Judge of the Federal High Court to M.G. Umar, J. and that the assignment order has not been withdrawn nor rescinded/ceased, then the issue whether the allegation of bias has become academic or moot will be otiose.
Counsel submitted however, that the allegation of bias is neither academic nor moot.
Counsel submitted that in so far as the assignment order of the Hon. Chief Judge transferred this suit for hearing and determination to M.G. Umar, J., the allegation of bias made against him (and which has been remitted to this Honourable Court) will continue to debar and prevent the learned trial court from hearing and determining the pre-election dispute.
This, he said, will be a grievous affront to the age old maxim expressed as interest rei publicae ut sit finit Lituem there must be an end to litigation.
Learned senior counsel referred to the cases of Plateau State of Nigeria vs. A.G. of the Federation (2006) 3 NWLR (Pt. 967) 346 at 319, Adeogun vs. Fashogbon (2008) 7 NWLR (Pt. 1115) 149, Badejo vs. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15, Ogbonna vs. President, Federal Republic of Nigeria (1997) 5 NWLR (Pt. 504) 281 and submitted that “a suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour…”
Learned senior counsel argued that it is not being contested that:
“(a) An allegation of bias was made by the 2nd Respondent/Applicant against Hon. Justice M.G. Umar.
(b) The 2nd Respondent/Applicant on the basis of his allegation of bias made against the learned trial Judge, urged the Hon. Justice M.G. Umar to disqualify himself from hearing and determining this suit.
(c) Pursuant to the application to disqualify himself, the learned trial Judge transferred the matter to this Honourable Court.
(d) By an assignment order (administrative fiat) made by the Hon. Chief Judge this suit was assigned to Hon. Justice M.G. Umar for hearing and determination.
(e) The assignment of the case to Hon. Justice M.G. Umar has not been rescinded/withdrawn nor ceased.”
Counsel submitted that unless the allegation of bias made against the learned trial Judge is determined, the trial Court will not in the interim continue with the adjudication of this pre-election and thereby Judicial Review proceedings will effectively be undetermined and may remain so whilst the res continues to dissipate and become extinguished by MAY 2015. He urged that the application of the 2nd Respondent be dismissed.
In deciding the sole issue in this application, I must say that the premise on which the 2nd Respondent/Applicant based his submissions is factually incorrect and legally wrong.
As I said earlier on, Suit No. CA/OW/21/2012 was an appeal to this Honourable Court by the 2nd Respondent/Applicant on a Ruling by the Hon. Justice M.G. Umar which complained of the joinder of Dr. Andy Uba to the substantive suit pending before the lower court. The fact that Ground 7 of the Notice and Grounds of Appeal in Appeal No. CA/OW/21/2012 complained of bias against the Honourable Justice Umar was subsidiary to the basis of Appeal No. CA/OW/21/2012, which in essence prayed the court of Appeal to set aside the order of Umar J., which joined Dr. Andy Uba as 2nd Respondent in the substantive suit.
Meanwhile, in the pendency of Appeal No. CA/OW/21/2012 in the Court of Appeal, the 2nd Respondent/Applicant who was also the Appellant in Suit No. CA/OW/21/2012 filed Exhibit C – a fresh motion dated 20/2/2012 wherein he prayed the Honourable Justice M.G. Umar to disqualify himself from continuing to hear the substantive suit – No. FHC/UM/CS/92/2011.
Clearly, the motion of 20/2/2012 by the 2nd Respondent calls for a determination notwithstanding the pendency of the 2nd Respondent’s appeal on joinder in Appeal No. CA/OW/21/2012.
Indeed, to further demonstrate the scenario, the learned trial Judge had two or more options in the decision of the motion.
The first with due respect is with or without pronouncing on the likelihood of bias but on the basis of the allegation remit Suit No. FHC/UM/CS/92/2011 to the Honourable Chief Judge of the Federal High Court for assignment to another Judge.
The second possible choice for the learned trial Judge in the ensuing scenario is to say that there are no materials to show any likelihood of bias, rule as against the 2nd Respondent/Applicant in the motion of 20/2/2012 and proceed with the hearing of the case.
What did the learned trial Judge do?
Rather, than exercising his discretion in any of the above categorized manner, the Hon. Justice M.G. Umar made reference to Ground 7 of the Notice and Grounds of Appeal in Appeal No.. CA/OW/21/2012 and took refuge in the allegation of bias leveled against him under the said Ground 7 of Appeal No. CA/OW/21/2012 and wrongly in my view invoked the provision of Order 4 Rule 11 of the Court of Appeal Rules, 2011 and ordered the Registrar to transfer the motion before him for decision by the Court of Appeal. For ease of reference, Order 4 Rule 11 of the Court of Appeal Rules 2011 stipulates as follows:
11. After an appeal has been entered and until it has been finally disposed of, the court shall be seized of the whole proceedings as between the parties thereto, except as may be otherwise provided in these Rule, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”
Now, there is nothing in the record of proceedings in this case to show that the 2nd Respondent’s application of 20/2/2012 was in respect of Appeal No. CA/OW/21/2012. The 2nd Respondent’s applicant’s motion on Notice of 20/2/2012 and Appeal No. CA/OW/21/2012 in my view operate as two parallel lines in the judicial system.
I think the learned trial Judge was in error by making the said Ground 7 of the Notice and Ground of Appeal in Appeal No. CA/OW/21/2012 as the basis of his decision to transfer the 2nd Respondent’s Application of 20/2/2012 for decision by the Court of Appeal.
The ultimate effect of the above error by the learned trial Judge is that he has not rendered a decision or make a pronouncement on the 2nd Respondent’s motion of 20/2/2012. The implication of this for the Appellant is that the substantive suit is stalled. This is because the decision on the 2nd Respondent’s motion for recusal now lies albeit irregularly in between the Court of Appeal and the bosom of the Hon. Justice M.G. Umar.
To this extent, and in that garb, the learned senior counsel for the Appellant/Respondent was right to have argued that the live issue in this appeal is that unless a decision is rendered on the 2nd Respondent’s motion on notice, there is and there would be no judge to try the substantive suit in the court below. The Hon. Justice M.G. Umar has left the Forum Situ that is the Umuahia Division of the Federal High Court. There is nothing on record to show that Suit No. FHC/UM/CS/92/2011 has been assigned to Hon. Justice F.A. Olubanjo. Indeed, the possibility of assigning or transferring the substantive suit to the Hon. Justice F.A. Olubanjo becomes somewhat difficult until and unless Appeal No. CA/OW/180/2012 is decided one way or the other.
I do agree entirely with the learned senior counsel for the Appellant/Respondent that in the execution of administrative fiats by heads of courts especially Chief Judges, cases are assigned to particular Judges and not particular courts. Indeed, if one may take an example in the assignment of cases by Chief Judges in the states, a Judge may move from Court 15 to Court 14, but he carries along with him the cases that were assigned to him from his previous court to the new court.
Indeed, the case of H.R.H. Oba Folagbade Olateru Olagbegi (the Olowo of Owo) & Ors, vs. His Excellency, the Governor of Ondo State & Ors. (supra) is truly apposite to the facts and circumstances of the instant case. Gumel, JCA held in that case at Pp.25 -27, that:
“The current practice that is so notorious and which does not admit of any argument is that chief Judges of High courts do sometimes withdraw one case or the other from one Judge to another of from one Judicial Division to another. Circumstances are well known when either the Plaintiff or Defendant had petitioned or requested for matters or causes to be removed from one Judge to another. For example, if a Judge goes on transfer from one Judicial Division to another, the chief Judge may by assignment order, direct that all cases that have reached certain advanced stages be moved or carried on by the same judge on transfer to another division. This power is normally by an administrative fiat ………….:
These practices are so replete and notorious that I can take judicial notice of them. They are indeed worthy of being taken judicial notice of and I accordingly do so in this appeal.”
In all the circumstances of this case, I do agree with the learned senior counsel for the Appellant, that Appeal No. CA/OW/180/2012 contains live issues to be adjudicated upon. That the appeal is neither moot or academic. The appeal is not merely theoretical, its sound is not empty and it is of practical utilitarian value to the Appellant/Respondent. See: Plateau State of Nigeria vs. A.G. of the Federation (supra)
The application of the 2nd Respondent dated 29/9/2012 and filed on 3/10/2012 is accordingly dismissed.
The Main Appeal
The relevant briefs of argument for the main appeal are as follows:
1. Appellant’s brief of argument dated 12/7/2012 and filed on the same date – settled by P.I.N. lkwueto SAN.
2. 1st Respondent’s brief of argument dated 13/8/2012 and filed on the same date settled by Ben Osaka, Esq.
3. Amended 2nd Respondent’s brief of argument dated 12/10/2012 filed on 15/10/12 but deemed filed on 17/10/2012 – settled by Professor Ilochi Okafor SAN.
4. Appellants Amended Reply Pursuant to Order of Court dated 7/11/2012 and filed on 8/11/2012 settled by P.I.N. Ikwueto SAN.
Learned senior counsel for the Appellant nominated a sole issue for determination to wit:
“Whether the learned trial court ought to have determined the Motion on Notice urging the presiding Judge to disqualify himself on the merits and thereby hear and determine the substantive application for Judicial Review on its merits.”
The 1st Respondent in this appeal contends that having regard to the Grounds of Appeal the issue which calls for determination in this appeal is:
“Whether the learned trial Judge as the presiding Judge was correct when he declined to determine on merit the motion on notice urging him to disqualify himself and refusing to proceed with the substantive application for judicial review pending the determination of the appeal raising allegation of bias against him.”
Learned counsel for the 2nd Respondent adopts the following as the issues falling for determination in this appeal.
“1. Whether in circumstances of this appeal, the court below was right in transmitting the application by the herein 2nd Respondent for the learned trial Judge to disqualify himself from hearing the Application for Judicial Review to the Court of Appeal.
2. Whether this appeal is a proper forum for the Court of Appeal to exercise its general powers under Section 15 of the Court of Appeal Act to hear and determine the substantive application for Judicial Review pending at the court below.”
I have carefully gone through the record of appeal and the processes filed by the parties to this appeal. I am of the view that the following two (2) issues would be appropriate for determination of this appeal
“1. Whether the learned trial court ought to have determined the Motion on Notice urging the presiding Judge to disqualify himself on merit.
2. Whether this appeal is a proper forum for the Court of Appeal to exercise its general powers under Section 15 of the Court of Appeal Act to hear and determine the substantive application for Judicial Review pending in the court below.”
In considering this appeal, the arguments by the Appellants shall be considered on one side of the scale while the submissions of the two sets of Respondents, that is the 1st Respondent and the 2nd Respondent shall be treated together as the submissions of the “Respondents” this is for the reason of the shared common interest between the two sets of Respondents and also for the reason of convenience.
On Issue No. 1, learned senior counsel for the Appellant submitted that after hearing arguments from the parties in the motion which led to this appeal, that is the 2nd Respondent’s motion of 20/2/2012, the learned trial court came to the conclusion that “Ground seven of the grounds of appeal now pending before the Court of Appeal is a ground against my humble self on the issue of bias. Any pronouncement in respect of this issue is likely to come into conflict with whatever pronouncement that would be made by the Court of Appeal in respect of the same issue”
Counsel submitted that for an allegation of bias to be grounded against the person of a Judge, it must be made on solid and unshaken grounds not mere figment of imagination.
He referred to the cases of Abalaka Vs. Minister of Health (2006) 2 NWLR (Pt. 963) 105 at 133 and Womiloju vs. Anibire (2010) 10 NWLR (Pt.1203) 545 at 571.
Learned senior counsel for the Appellant submitted that in the instant case, there is no iota of evidence to demonstrate that the learned trial court exhibited any prejudice or real likelihood of bias in the conduct of the proceedings before it including in the determination of the Motion on Notice seeking to join the 2nd Respondent herein as a party to the suit.
Counsel submitted that the application by the 2nd Respondent made before the learned trial court seeking to disqualify the presiding Judge from hearing this case was totally unfounded.
The learned trial court, said counsel, ought to have determined that there were no substantial evidence of prejudice nor real likelihood of bias contained in the said application and accordingly dismiss same.
Counsel referred us to the decision of the Supreme Court in the case of Adefulu vs. Okulaja & Ors. (1998) 5 NWLR (Pt. 550) 435 and urged us to determine that in the light of the facts and circumstances of this case as borne out by the records of the court, the allegation of bias was merely a gimmick intended to intimidate or prevent the learned trial court from hearing and determining the application for Judicial Review on the merits.
Unfortunately, said counsel, the learned trial court failed to determine the application before it on merits but rather made an order remitting the application to this Honourable Court on the reasoning that one of the grounds of appeal in the appeal pending before this Honourable Court raises the issue of bias.
Significantly, according to counsel, in the appeal by the 2nd Respondents before this Honourable Court (CA/OW/21/2012) the ground of appeal alleging bias has been withdrawn and abandoned.
Counsel submitted that notwithstanding the above development, due to the order made by the learned trial Court remitting the application to this Honourable Court, the substantive suit will be stalled and may never be determined.
On Issue No. 1, the Respondents submitted that the decision of the learned trial Judge to have the application on bias transmitted to the Court of Appeal hearing a similar issue in respect of an appeal then pending at the Court of Appeal was proper in the circumstances of the case.
Learned counsel for the Respondents submitted that the Application before the lower court was by way of a Motion on Notice accompanied by an affidavit of 16 paragraphs. That, the herein Appellant did not have any counter-affidavit to rebut the fact alleged in the said Application by the herein 2nd Respondent (see, pages 2256, 2557 and 2293 of the Record of Appeal) Given the above, it is taken that the allegations contained in the said affidavit are proved or admitted by the Appellant.
Counsel referred to the case of B.O.N. Ltd. Vs. Adegoke (2006) 10 NWLR (Pt. 988) 339 at 355, Ojo vs. FRN (2006) 9 NWLR (Pt. 984) 103 at 118.
The Respondents counsel submitted that in the light of the above facts, it was prudent of the learned trial Judge not to have gone into the merits of the said application. The action of the learned trial Judge in referring the said Application to the Court of Appeal, said counsel finds support in the admonition of the Court of Appeal, per Ndoma – Egba, JCA (as he then was) in Denge vs. Ndakwoji (1992) 1 NWLR (Pt.216) 221 at 223,that on the mere mention of bias “the safest thing to do is for a trial Judge to pull out from the case – such a course of action will be reassuring for the parties.
Learned counsel to the Respondents further submitted that as at 21/3/2012 when the Ruling of the court below on the subject matter of this appeal was delivered, there was before the Court of Appeal , Appeal No. CA/OW/21/2002 in which Ground 7 of the Notice and Grounds of Appeal contended that the learned trial Judge had manifested strong and/or likelihood of bias which prematurely determined the Ruling of the learned trial Judge on the joinder of Dr. Andy Uba to the substantive suit.
Respondents submitted that since as at that date of the Ruling of the court below, the Court of Appeal was already siesed of the issue of bias in the proceedings against the learned trial Judge, it was most prudent on the part of the trial Judge not to embark upon a determination of the said application on merit as any pronouncement he made in respect of the said issue was likely to come into conflict with whatever pronouncement that would be made by the Court of Appeal on the same issue.
Learned counsel to the Respondents referred to paragraph 4.8 of the Appellant’s brief and submitted that if the Appellant accepts that Ground 7 of the Appellant’s Grounds of Appeal in Appeal No. CA/OW/21/2012 was withdrawn, this Honourable Court should indeed accept that allegation of bias was no longer a live issue in Appeal No. CA/OW/21/2012.
Counsel to the Respondents submitted that the order of transmission of the Application on bias to the Court of Appeal being appealed against by the herein Appellant was predicated on the need for the Court of Appeal to decide the issue of bias. That, when the Ground of Appeal on bias was withdrawn, the Appellant ought to have advised himself that his Appeal had become moot and academic.
Counsel submitted that courts of law do not determine academic questions but live issues.
In his reply brief, learned senior counsel for the Appellant submitted that the decision of the learned trial court transmitting the application urging to disqualify itself to this Honourable Court was a decision within the meaning of Section 318 of the 1999 Constitution (as amended).
On this, Appellant’s Counsel referred to the cases of In re: Shyllon (1994) 6 NWLR (Pt. 353) 735 at 750, and Ajiboye vs. Adeyelu (1997) 9 NWLR (Pt. 519) 152 at 159.
Finally, the learned senior counsel for the Appellant reiterated that neither the abandonment of Ground 7 in the 2nd Respondent’s Notice of appeal, the striking out of Appeal No. CA/OW/21/2012 nor the replacement of the Hon. Justice M.G. Umar by Hon. Justice F. Olubanjo in the Umuahia Judicial Division of the Federal High Court would render the Appellant’s appeal moot or academic.
Perhaps I had unavoidably made a pronouncement on Appellant’s issue No. 1 in the treatment of the 2nd Respondent’s Motion on Notice which sought to strike out the Appellant’s appeal. This is simply because the issue raised by the parties in the Motion on Notice and the Appellant’s Issue No. 1 are related and so interwoven if the issues would not be described as been the same.
It is only proper to restate that the Appellant was right to say that the learned trial Judge was in error to have transmitted the Motion on Notice on recusal for a decision by the Court of Appeal.
In the first place, to my mind the motion which culminated into this appeal was not in any way related to Appeal No. CA/OW/21/2012 which had been entered in the Court of Appeal ever before the motion for recusal was filed.
Secondly, appeal No. CA/OW/21/2012 was an appeal not on the issue of bias but on the joinder of Dr. Andy Uba as 2nd Respondent.
As pointed out by the learned senior counsel for the 2nd Respondent in this case, the admonition of Ndoma-Egba, JCA (as he then was) in the case of Denge vs. Ndakwoji (supra) at 233 was to the effect that:
“The Appellant has made the allegation of bias, wrongly or rightly. This cannot be exorcised. Bias is a state of mind, incapable of precise definition or proof, whatever impression it may convey. In our judgment (Benin Division) in Lieutenant Colonel Omoniyi vs. Central Schools Board & Ors. (1988) 4 NWLR (Pt. 89) 448 at 451, we stated:
“The imputation of bias of any kind to a trial Judge including favouritism and selective treatment, does not only diminish the stature and integrity of the judge but destroys the foundation of his judgment, however sound and consistent with the Rule of Court, pleadings and evidence.”
“The safest thing to do is for a trial Judge to pull out from the case on the mention of bias. Such a course of action will be reassuring to the parties”.
It seems to me, that if the learned trial Judge in the court below had followed the above admonition of the noble Justice of the Court of Appeal, the learned trial Judge would have simply remit the case file, that is Suit No. FHC/UM/CS/92/2011 together with the motion for recusal to the Hon. Chief Judge of the Federal High Court for re-assignment to another Judge or otherwise dismiss the motion and try the case.
The decision to transfer the motion for recusal to the Court of Appeal leaves both the case and the substantive suit hanging and there lies the complaint of the Appellant in this appeal.
For these reasons, the learned senior counsel for the appellant was right to have said that the learned trial Judge ought to have determined the Motion on Notice on merit.
Issue No. 1 is resolved in favour of the appellant.
On Issue No. 2, learned senior counsel for the Appellant said it is common ground that the subject matter of this suit is a pre-election matter, an application for Judicial Review challenging the action of INEC (1st Respondent in refusing to act on the list of sponsored candidates submitted, forwarded to it by the Peoples Democratic Party. He said, being a pre-election matter, it is needless arguing that the subject matter of the suit is time bound. Indeed, said counsel, the res will be completely destroyed and expired by effluxion of statutory time by May 2015.
The appropriate question, according to counsel, is should this Honourable Court assume jurisdiction under its general powers and determine the substantive application for Judicial Review and make any orders which the learned trial court could make in the circumstances. Counsel answered the question in the affirmative.
Counsel submitted that the general powers of this Honourable court enables the Honourable court to make any order necessary for determining the real question in controversy in the appeal and to have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance.
Learned senior counsel for the appellant submitted for the following processes before the lower court are yet to be determined:
(a) The substantive application for Judicial Review filed by the Appellant/Applicant.
(b) The 1st Respondent’s (INEC) Motion seeking to dismiss the substantive suit as been incompetent.
He submitted that the instant suit for Judicial Review is to be heard and determined on the basis of the affidavits and documents filed by the parties.
After referring to the provision of Order 34 Rule 6 Federal High Court (Civil Procedure) Rules 2009, learned senior counsel for the Appellant submitted further that it is trite that, where, as in this case, the issue in controversy relates to the interpretation and/or meaning to be ascribed to documentary evidence, this Honourable Court is in a good position as the trial court to examine such documents and make necessary deductions, inference and or findings thereon.
On this, counsel referred to the cases of Momoh vs. Umar 2011 15 NWLR (Pt. 1270) 217 at 251, Okoya vs. Santili (1994) 4 NWLR (Pt. 338) 256, Minilodge Ltd vs. Ngei (2007) WRN (Vol .4) 54 at 72.
Learned senior counsel for the Appellant reminded us that the central issue in the substantive originating motion for Judicial Review is whether under the Electoral Act, the 1st Respondent as a statutory body can refuse to accept the list of candidates forwarded/submitted to it (INEC) by the PDP as the sponsored/nominated candidates of the political party in the General Election.
He pointed out that by Section 31(1) of the Electoral Act, 2010 (as amended), the duty is incumbent on the 1st Respondent to accept the list of candidates submitted by a political party as the candidates it (the political party) proposes to sponsor at the election.
Counsel submitted that the documents filed in support of the substantive motion for Judicial Review show that the PDP as a political party wrote several letters to the 1st Respondent urging the 1st Respondent to accept and act on the list of candidates submitted by the political party to the 1st respondent.
He argued that from a long line of judicial authorities, the legal position has been firmly entrenched that the selection and or nomination of candidates for an election is within the exclusive jurisdiction of a political party. All that a political party need do is to ensure that the provisions of its Constitution and any applicable law are complied with in the selection/nomination of candidates for an election.
He referred to the cases of Onuoha vs. Okafor (1983) 14 NSCC 494. And, that in the recent cases of Chief Ikechi Emenike vs. Peoples Democratic Party & Ors. unreported Judgment in SC/443/2011 dated 25th May 2011 and Appeal No. SC/69/2012, Prince John Okechukwu Emeka vs. Lady Margery Okadigbo & 4 Ors. (unreported Judgment delivered on 6th July 2012), the supreme court of Nigeria re-emphasized the pre-eminent status of Primary Election organized by the National Executive Committee of the Peoples Democratic Party (the political party to which the Appellant and the second Respondent herein belong). That, according to Fabiyi, JSC in the Emenike case “the aspirant must show clearly and without any equivocation that the National Executive Committee of the political party conducted a primary election in which he was an aspirant.”
It is acknowledged, said counsel, that the 2nd Respondent’s position is that his name was sent to INEC by one Benji Udeozo who described himself as the State Chairman of the PDP, Anambra State.
Learned senior counsel for the Appellant opined that the facts, circumstances and issues, in the instant application for Judicial review are same as in Lady Margery Okadigbo’s case (supra).
He urged us to resolve the radical issue in this case along the authoritative decision already delivered by the Supreme Court in a related and substantially similar situation.
On the part of the Respondents, it was submitted that by the vehicle of this Appeal, the appellant urged us to assume jurisdiction under the general powers conferred on the Court of Appeal by virtue of Section 15, Court of Appeal Act, 2004 and determine the substantive application for Judicial Review and make any orders which the learned trial court could make in the circumstances.
It is trite, said Respondents counsel, that the Court of Appeal under Section 15 of the Court of Appeal Act, 2004 hearing an appeal has full powers as that accorded to the court of first instance. However, the powers of the Court of Appeal are not at large or without limitations. The invocation of Section 15 of the Court of Appeal Act is not at the whims and caprice of the parties.
Learned counsel for the respondents referred to two important decisions of the Supreme Court which have laid down the necessary requirements for the invocation of the Section 15 power of the Court of Appeal. The first is Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 613 – 614 and the second is Obi vs. INEC (2007) 11 NWLR (Pt. 1046) 565 at 639 – 640.
Respondents counsel submitted that the conditionalities laid down in both cases on the invocation of the Section 15 power of the Court of Appeal are as follows:
1. The lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it.
2. The real issue raised up by the claim of the Appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal.
3. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
4. The injustice or hardship that will follow if the case is remitted to the court below, must be clearly manifest itself.
Respondents counsel also referred to the case of Ajayi vs. NURTW (2009) 8 NWLR (Pt. 1144) 423 at 451 – 452.
Learned counsel to the Respondents submitted that the real issue in controversy before the court below is who was the validly nominated candidate of Peoples Democratic Party for the April , 2011 National Assembly Election in Anambra State Senatorial District. But, that on the other hand, the Notice and Grounds of Appeal presented for determination in this Appeal relates only to the propriety of the decision of the court below transmitting the Application on bias to the Court of Appeal.
That, the said Grounds of Appeal in no way touch upon the issues in controversy in the substantive application for Judicial Review.
In essence, said counsel, this has not touched upon the substantive claim of the Appellant at the court below. In that wise, he said, the real issue raised by the claim of the appellant at the court below is not capable of being distilled from any grounds of appeal filed in respect of the said ruling of the court below.
Counsel to the respondents referred to the cases of Saraki vs. Kotoye (1992) 9 NWLR (Pt.264) 156 and Osahon vs. FRN (2003) 16 NWLR (Pt. 845) 89 at 117 and contends that it is the Grounds of Appeal that activate the jurisdiction of the Appellate court to adjudicate on matters placed before it in an appeal.
Respondents argued that in the instant case, there is a total disconnect between the Relief sought in the Appeal and the Grounds of Appeal. That, while, the Grounds of Appeal is a challenge to the propriety of the court below transmitting the Motion on Notice seeking to disqualify the Trial Judge from continuing hearing and determination of the substantive suit, Appellant by his Relief is seeking the intervention of the Court of Appeal to hear the substantive originating summons on the merit.
Learned counsel to the Respondents submitted that reliefs sought in an appeal must come within the confines and contemplation of the Grounds of Appeal. That, reliefs must naturally flow as a consequence for the resultant determination made over the Grounds of Appeal. That, it is incompetent and not open for the appellant to seek reliefs not relatable or having nexus with the Grounds of Appeal.
The Respondents submitted further, that from the principle of law laid down in Osahon vs. FRN (supra), it is deducible that a court of law cannot pronounce on an issue not grounded in the Appellant’s complaints as expressed in his Grounds of Appeal. That, that being the case, any Appellant’s relief which falls outside the said Grounds cannot also be granted. The relief sought in this Appeal, according to the Respondents, falls outside the Appellant’s Grounds of Appeal and should be discountenanced.
Respondents submitted that the court below has not decided the substantive issue of nomination of candidates one way of the other neither has it declined to determine the issue. That, in the present appeal, there is no ground of appeal articulating any complaint on the issue of nomination, candidature or sponsorship of candidates for election. That, the invitation by the Appellant for this Honourable Court to determine that issue vide this appeal is an unfortunate invitation for this Honourable Court to wrest jurisdiction with the court below over a matter that is still alive between the parties at the court below.
Counsel submitted that Appeals are by way of re-hearing. That, this court can only assume jurisdiction over the substantive suit if the court below had made a pronouncement touching on the substantive matter either determining same on the merit or declining to determine same pursuant to which an appeal was filed. That, it is only then that the Court of Appeal can, looking at the Grounds of Appeal filed in respect of the said pronouncement of the court below, assume jurisdiction to hear the substantive matter on appeal.
On this, the counsel to the Respondents referred to the cases of Ajayi vs. N.U.R.T.W (2009) 8 NWLR (Pt. 1144) 423 at 452 – 453, and Military Admin. Ekiti State vs. Aladeyelu (2007) 14 NWLR (Pt. 1055) 619 at 642.
Learned counsel to the Respondents took the opportunity to disclose that there are yet some pending interlocutory applications at the court below i.e Federal High Court, Umuahia. Counsel listed listed the Application as follows:
(i) Application to dismiss the Application for Judicial Review dated and filed on 7/3/2011 (see page 610 of the Record of Appeal).
(ii) Application by 2nd respondent for extension of time to file his Counter-Affidavit and Written Address in opposition to the originating summons (see pages 1831 – 1838 of the Record of Appeal).
(iii) Application by Hon. Ben Nwankwo to set aside the representative capacity of the 2nd respondent on record and to enable the said Hon. Ben Nwankwo to defend the originating process personally (see pages 1924 – 1977 of the Record of Appeal).
(iv) Application by Hon. Fort Dike to amend the representative capacity of the 2nd Respondent on record and to enable the said Hon. Fort Dike to defend the originating process personally (see pages 2118 – 2162 of the Record of Appeal).
(v) Application by Hon. Chizor Obidigwe dated and filed on 9th day of July, 2012 praying among other things for the exclusion of his name from persons or class of persons being represented by the 2nd Respondent and excluding him from the class of persons affected by the application for Judicial review on the ground that the action instituted against him abated upon the death of Patrick Amuzie (the person who initiated the said action against him) Vol. 2 of the Record of Appeal.
(vi) Application to strike out the Application for Judicial Review for being moot, incompetent and merely academic dated and filed on 9/7/2012 by 2nd Respondent (see page 13 of the Additional Record of Appeal Vol. 11).
Learned counsel to the Respondents submitted further that while the 1st Respondent has an application challenging the jurisdiction of the court below to hear and determine the substantive Application for Judicial Review, the herein 2nd Respondent is yet to properly file his Counter-Affidavit and Written Address in opposition to the originating summons and is still seeking an indulgence of the court below to do so.
The Respondents contend that it would be the greatest injustice for this Honourable Court to proceed to hear the substantive matter without the 2nd Respondent’s Counter-Affidavit and Written Address in opposition to the originating summons when he has evinced the intention to defend the suit. This they said, is more so when the 2nd Respondent’s motion for extension of time is yet to be moved at the court below.
Learned counsel to the Respondents referred to the decision of Niki Tobi, JCA (as he then was) in Ani vs. Nna (1996) 4 NWLR (Pt. 440) 101 at 120 and submitted that the law is settled that a court of law has neither jurisdiction nor discretionary power not to take a process before it and that all applications must be heard and pronounced upon.
The question that ought to agitate the mind of the court, according to the Respondents, is whether these applications are such that should be disposed of by this Honourable Court.
Learned senior counsel for the Respondents gave three (3) reasons why this court ought not to pronounce on the sundry applications in the court below.
(i) If the court on the premise of the Appellant’s Grounds of Appeal cannot pronounce on the real question in controversy between the parties, it respectfully should not also pronounce on the sundry Interlocutory Applications pending before the court of first instance.
(ii) The grounds of Appeal as filed did not donate any complaint touching upon the pending interlocutory applications.
(iii) The Appellant’s relief in this appeal is not related to the said pending interlocutory applications.
Learned counsel to the Respondents submitted that the pending applications all drive to one end, that the claim at the court below is not ripe for hearing. The court below lacks the jurisdiction to pronounce on the main claim without first of all pronouncing on the interlocutory applications. That, since the trial court will have no jurisdiction to pronounce on the real issue in contest without first pronouncing on the pending interlocutory applications, this court, according to the Respondents cannot also do the same. The Respondents thereby urge the dismissal of the appeal.
In his Amended Reply brief, learned senior counsel for the Appellant submitted amongst other things that the authority of Inakoju vs. Adeleke (supra) referred to and quoted extensively by the 2nd Respondent is unhelpful to the position of the Respondents.
He submitted that from a dispassionate examination of the authorities, the real question in the instant appeal is whether the learned trial court having remitted this matter to the Court of Appeal on the ground that an allegation of bias made against the trial court was a subject of an appeal before the Court of Appeal, will the case remain in limbo and not heard nor determined as the appellant who made the allegation of bias withdrew the Ground of Appeal alleging bias against the trial court.
Learned senior counsel for the Appellant conceded to the Respondents contention that there are several pending motions yet to be determined by the trial court thereby making the invocation of the Section 15 powers of this court inapplicable.
Learned senior counsel to the appellant picked and commented on each of the pending motions referred to by the learned counsel to the Respondents but declared that they have all ceased to be live issues and become mere academic exercise. More, particularly, in relation to the 2nd Respondent’s motion for extension of time, learned senior counsel for the appellant said it is not being opposed by any party and ought not be an excuse as to why this case should not be determined one way of the other.
Learned senior counsel for the Appellant referred again to the cases of Obi vs. INEC (supra) at pages 508 – 509 and the Supreme Court decision Inakoju vs. Adeleke (supra) in emphasizing that the court ought to take into consideration:
“(a) availability of the necessary materials to consider and adjudicate on the matter.
(b) the length of time between the disposal of the action at the trial court and the hearing of the appeal
(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties in the case.”
Learned senior counsel for the Appellant invited us to bear in mind the admirable approach adopted and approved in the celebrated case of Inakoju vs. Adeleke (supra) at 427 that “where the res in a case before the court is in danger of being wiped out, the judiciary must take the fast lane and do all that is possible to give it speedy hearing”.
Learned senior counsel for the Appellant, Mr. P.I.N. Ikwueto made further references to the recent decisions of the Supreme Court in Prince John Emeka vs. Lady Margery Okadigbo & 4 Ors. (supra) and Chief Ikechi Emenike vs. PDP (supra) and urged us to adopt and apply the final decision on this subject matter as per the judgment of the supreme court in the identically related case of SC69/2012 Prince John O. Emeka vs. Lady Margery Okadigbo (supra) to hold that the action of the 1st Respondent in receiving and acting on the list of candidates submitted by Chief Benji Udeozor, Anambra state chairman PDP “carries with it no rights and is a complete nullity.”
In conclusion in the Amended Reply brief, learned senior counsel referred yet again to the case of Inakoju vs. Adeleke (supra) and said that therein, the Supreme Court upheld the approach laid down in Senate President vs. Nzeribe (2004) 9 NWLR (Pt. 878) 251 and reiterated that:
“In a case brought by originating summons (or by way of Judicial Review, as in this case) where the whole of the evidence required to determine the merits of the case is in the form of affidavit evidence already filed before the court, it may be prudent to hear together the arguments as to the jurisdiction and the merits of the case.”
Counsel urged us to determine this long overdue pre-election matter in keeping with the above approach and not to be inhibited from invoking the powers of the Honourable Court as provided by Section 15 of the Court of Appeal Act.
One interesting aspect of the second issue in this appeal is that while the Appellant’s counsel has emphasized the need for expeditious disposal of the case or suit and to avoid the injustice and hardship that will follow if the case is remitted to the court below in the pronouncements of the Supreme Court on the invocation of the Section 15 power of the Court of Appeal, the counsel to the Respondents have emphasized the limitations in the invocation of the said power which includes the fact that the lower court must have the jurisdiction to adjudicate in the matter and the need to critically examine the real issue in controversy in a particular appeal.
See, Inakoju vs. Adeleke (supra).
I do agree with the learned counsel to the Respondents that it is the Grounds of Appeal that activate the jurisdiction of the appellate court to adjudicate on matters placed before it in an Appeal.
See: Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156, Osahon vs. FRN (2003) 16 NWLR (Pt. 845) 89 at 117.
I do also agree with the learned counsel to the Respondents that the Appellant cannot use the vehicle of the instant appeal to insist on this court hearing the substantive Application for Judicial Review. This is because, the present appeal is an interlocutory appeal emanating from an issue which is in no way related to the merits of the main case.
The main suit is still pending at the court below and has not been pronounced upon by the said court. The issue that has come up for determination in this appeal is the propriety of the order of the court below made on 21/3/2012 wherein the court below ordered its Registry to transmit the application filed by the 2nd Respondent for trial Judge to be disqualified on grounds of bias. On the other hand, the main case which is still pending at the court below concerns the issue of nomination and sponsorship of candidates at the election.
The Applicant’s Grounds of Appeal in the instant case in no way touch upon the issues in controversy in the substantive Application for Judicial Review. Also, the court below itself in all the circumstance does not yet possess the jurisdiction to try the substantive application for Judicial Review, until it has finally disposed of the sundry Applications before it, the pendency of which was conceded by the learned senior counsel for the Appellant. In consequence, two vital ingredients for the invocation of the Section 15 power of the Court of Appeal are missing in this case.
The first is that the lack of present and actual jurisdiction by the court below to try the substantive suit as of now prevents the Court of Appeal from hearing the substantive Application. This is closely related to the principle that an appeal is by way of re-hearing and that the Court of Appeal would not as a general rule pronounce on an issue that has not been pronounced upon or refused to be pronounced upon by the court below.
For example, in A-G. Anambra State vs. Ephraim Okeke & Ors. (2002) (Pt. 112) 175 at 194, the Supreme Court stated that the power of the Court of Appeal under Section 16 (now Section 15) of the Court of Appeal Act is for the purpose of rehearing and not for the Court of Appeal to hijack the overall jurisdiction of the High Court in matters which are not in issue before it.
Truly, and as pointed out by the learned counsel to the Respondents, this court can only assume jurisdiction over the substantive suit if the court below had made a pronouncement touching on the substantive matter either determining same on the merit or declining to determine same pursuant to which an Appeal was filed. It is only then that the court of Appeal can looking at the Grounds of Appeal filed in respect of the said pronouncement of the court below and assume jurisdiction to hear the substantive matter in the appeal.
In the case of Ajayi vs. N.U.R.T.W (supra) at 452, the court held:
“Without equivocation, I am of the view and I hold that none of the conditionalities is present in the instant matter to warrant the invocation of this court’s power under the provision of Section 16. The lower court is still at cross-roads regarding the determination of its legal power to adjudicate on the suit filed before it by the applicant and his co-plaintiffs. The real issue raised by the said plaintiffs at the lower court have neither been considered nor pronounced upon one way or the other. Hence, there is no judgment of the lower court which could be appealed and from which grounds of appeal could flow for reappraisal by this court…..”
In the same tone as the Court of Appeal in the case of Ajayi vs. N.U.R.T.W (supra) Akintan, JSC speaking for the Supreme Court in the case of Milad, Ekiti State vs. Aladeyelu (2007) 14 NWLR (Pt. 1055) 619 at 642 held thus.
“I agree with the Appellants counsel, that the Court of Appeal has no business whatsoever of deciding the issue raised in the main trial, in claim 6, 7 , 8, 9 and 10, by setting aside the declaration registered in 1995. These issues should await the decision of the trial court when it considers all the claims on the basis of the evidence to be called by parties. As mentioned above, the issue before the Court of Appeal was an interlocutory appeal and the matter was not heard or decided on the merits. There was no order of the trial court concerning the appointment of the 6th Appellant nor was there any decision in respect of the new declaration for the Court of Appeal to assume jurisdiction to intervene … ..The jurisdiction of the Court of Appeal is appellate and in the circumstances of this case, the Court of Appeal has no original jurisdiction to make the orders it made.”
The second ingredient missing in this case for the invocation of the Section 15 power of the Court of Appeal lies in the conual interpretation of the provision itself. Thus in Inakoju vs. Adeleke(supra) at Pp. 613 – 614, Niki Tobi JSC said inter alia
“…..The Section commences in the following terms:
“the Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal.”
The word “real” in the con means actual. It also means true. The word “question” conually means the issue involved in the appeal. The word “controversy” means the actual issue in dispute in the appeal. Accordingly, the real question in controversy means the actual issue in dispute in the appeal. The real issue in the appeal must be clearly donated by the ground or grounds of appeal, since that is the legal basis of the complaint by an Appellant: Therefore, before a Section 16 power could be invoked for the determination of the real question in controversy in the appeal, that question must be a ground of appeal.”
Also, in the case of Nneji vs. Chief Chukwu (1988) 3 NWLR (Pt. 81) 184, the Supreme court held that the general powers conferred on the Court of Appeal by Section 16 includes the power to make any order necessary for determining the real question in controversy in the appeal.
In interpreting the Section, Oputa, JSC, said at page 206:
“It is thus clear that the prior responsibility of the Court of Appeal (as well as other courts) is to hear the parties out, not to shut out any part to hear the merits of the case or appeal and decide according to those merits.”
In the instant case, the Appellant’s grounds of appeal concern the failure of the learned trial Judge to decide the issue of the allegation of bias on merit by making a pronouncement one way or the other on the 2nd respondent’s Motion on Notice dated and filed on 20:2:2012 and none of the grounds of appeal complained on the substantive Application for Judicial Review before the trial court, which in any event was not even ripe for hearing in the trial court itself.
In all of these circumstance, it is difficult perhaps imprudent to accept the arguments of the learned senior counsel for the Appellant on Issue No. 2.
However, in all of these, the point made by the learned senior counsel for the appellant as to the seeming contradiction in between the legal pronouncements and the factual eventualities in the case of Inakoju vs. Adeleke (supra) could not be so cheaply discarded.
The position is this: The Supreme Court decision in Inakoju vs. Adeleke supra) arose from the Ruling of Ige J. in the High Court of Oyo State whereby consequent on a Notice of Preliminary Objection, the learned trial Judge declined jurisdiction to intervene with the legality and/or constitutionality of the impeachment proceedings on the purported removal of Senator Rashidi Ladoja (then Governor of Oyo State).
On appeal, the Court of Appeal Ibadan Division, in a lead judgment delivered by Ogebe JCA (as he then was) found that the trial Judge was in error to have declined jurisdiction and proceeded to invoke its Section 16 (now 15) power to declare the impeachment proceedings unconstitutional.
On further appeal to the Supreme Court it was found that the Appellants grounds of appeal had already donated the issue of the constitutionality of the impeachment proceedings as a ground of appeal. It therefore became easy for the Supreme Court to confirm the exercise of the section 16 power of Court of Appeal as appropriate in the circumstances of the case.
Thus, in the same Inakoju vs. Adeleke’s case (supra) at Pp. 613 – 614, NikiTobi JSC said:
“…..the real question in controversy in this appeal is whether the removal of the 3rd Respondent complied with Section 188 of the 1999 Constitution or whether it was in violation or in breach of that Section.
The grounds of appeal and their particulars before the Court of Appeal clearly donated the real question in controversy. And so the coast was clear for the Court of Appeal to decide on the real question in controversy by invoking its Section 16 power.”
It is note worthy to observe that the learned senior counsel for the Appellant in the case of Mr. Peter Obi vs. INEC & 7 Ors. (2007) 11 NWLR (Pt. 1046) 436 as the learned senior counsel for the Appellant in the instant case placed heavy reliance on the case of Inakoju vs. Adeleke (supra) in arguing that even though the trial High Court did not decide the case on the merit, the Court of Appeal invoked its powers under Section 16 of the Court of Appeal Act and determined the case on the merits.
In the Obi vs. INEC & Ors case (supra) an answer to that same question was provided in the supporting judgment of Akaahs JCA (as he then was) at page 507 of the Law Report in the Obi vs. INEC case:
“The other issue I wish to comment on is the invocation of Section 16 of the Court of Appeal Act. Learned senior counsel for the Plaintiff/Appellant placed heavy reliance on Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 in arguing that even though the trial High Court did not decide the case on the merit or even made any pronouncement on the merit of the case, the Court of Appeal invoked its powers under Section 16 Court of Appeal Act and determined the case on the merits.
The simple answer to this is that the action was instituted in the court that was clothed with jurisdiction to hear the matter and so when the Oyo State High Court declined jurisdiction based on its erroneous interpretation that Section 188(10) precludes any court from inquiring into impeachment proceedings, the Court of Appeal exercised its powers to deal with the complain since it had sufficient materials placed before it by invoking Section 16 of the Court of Appeal Act”
Therefore, in all the circumstances of the case the facts in the instant case are totally different and distinguishable from the facts presented to the Court of Appeal and the Supreme Court in Inakoju vs. Adeleke (supra).
Issue No. 2 is resolved against the Appellant.
In this appeal, Issue No. 1 was resolved in favour of the Appellant and Issue No. 2 against the Appellant.
This appeal succeeds in part. The consequence of resolving Issue No. 2 against the Appellant is that this court cannot accede to the invitation of the learned senior counsel for the appellant that the court should render a decision on the substantive application for Judicial Review pending in the court below, that is the Federal High Court.
Accordingly FHC/AW/05/11, Suit No. FHC/UM/CS/92/2011 is remitted to the Hon. Chief Judge of the Federal High Court for assignment to another Judge of the Federal High Court other than M.G. Umar J.
I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I had the privilege of reading in draft the lead judgment of my learned brother M. A. Owoade, JCA just delivered.
My learned brother considered adequately the argument put forward by the learned counsel in this appeal and dispassionately dealt with all the issues raised. I therefore agree with the reasonings and conclusions arrived at that the appeal has some merit and adopt same as mine. However for emphasis only, I just would want to reiterate on the powers of the Court of Appeal under Section 15 of the Court of Appeal Act, 2004.
The issue formulated by my learned brother in determining this appeal is whether, this appeal is a proper forum for the Court of Appeal to exercise its general powers under Section 15 of the Court of Appeal Act to hear and determine the substantive application for Judicial Review pending in the court below.
The crux of the learned Appellant’s counsel complaint on this issue is that the subject matter of the suit is a pre-election matter and being a pre-election matter, the subject matter of the Suit is time bound as the ‘RES’ will be completely destroyed by efflusion of time by May 2015. Learned senior counsel for the Appellant, Mr. Ikwueto, SAN, urged us to assume jurisdiction under the general powers of the Court of Appeal Act under Section 15 to and determine the substantive application for Judicial Review pending at the Court below and to make any orders which the learned trial Court could make in the circumstances.
The Learned Senior Counsel further submitted that the substantive originating motion for Judicial Review is whether under the Electoral Act, the 1st Respondent herein, the Independent National Electoral Commission (INEC) as a statutory body can refuse to accept the list of candidates forwarded and/or submitted to it by the Peoples Democratic Party (PDP) as the sponsored/nominated candidates of the political Party in the General Election be heard and determined based on the affidavit evidence filed by the parties.
Learned Senior Counsel for the Respondents argued to the contrary. It is submitted that the real issue in controversy before the Court below is who was the validly nominated candidate of PDP for the April, 2011 National Assembly Election in Anambra State Senatorial District. It is argued that the Notice and Grounds of Appeal presented for determination in this appeal relates only to the propriety of the decision of the Court below transmitting the application on bias to the Court of Appeal for determination. They argued that the said grounds of appeal did not touch upon the issues in controversy in the substantive application for Judicial Review. In other words, the Grounds of Appeal did not in any way touch upon the substantive claim of the Appellant at the Court below. The Respondents further argued that the real issue raised by the claim of the Appellant at the Court below is not capable of being distilled from any of the grounds of appeal filed in respect of the said ruling of the Court below, the subject of the present appeal. The cases of Saraki vs. Kotoye (1992) 9 NWLR (PT 264) 156 and Osahon vs. F.R.N. (2003) 16 NWLR (PT 845) 89 at 117 were referred to. It is thus contended, that it is the Grounds of Appeal that actuate the jurisdiction of the Appellate Court to adjudicate on matters placed before it on appeal.
It is trite that under Section 15 of the Court of Appeal Act 2004, the Court of Appeal hearing an appeal has full powers as that accorded to the Court of first instance. Section 15 of the Act provides as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heared by a court of competent jurisdiction.”
This general powers of the Court of Appeal is not at large or without limitations.
The Apex Court, the Supreme Court of Nigeria has on several occasions made pronouncements as to when Section 15 of the Court of Appeal could be invoked. See Inakoju vs. Adeleke (2007) 4 NWLR (PT 1025) 423 at 613 to 614 and Obi vs. INEC (2007) 11 NWLR (PT 1046) 565 at 639 to 640. In Inakoju vs. Adeleke (Supra), the Supreme Court per Niki Tobi, JSC had this to say:
“The Court of Appeal can exercise its Section 16 power if only the High Court has jurisdiction in the matter. Accordingly, jurisdiction of High Court is a precondition for the invocation of the provision of section 16 by the Court of Appeal. In the more recent case of Professor Olutola v. University of Ilorin (2004) 18 NWLR (PT. 905) 416, this court held that the Court of Appeal can exercise its power under section 16 if only the trial court has jurisdiction in the matter. See NICON v. Power and Industrial Engineering Co. Ltd (1990) 1 NWLR (PT.129) 697; Faleye v. Otapo (1995) 3 NWLR (PT. 381) 1.”
Also, the case of Obi vs. INEC (Supra) at pages 639 – 340 spelt out once more the limitations in the invocation of Section 15 of the Court of Appeal Act thus:
It follows from what I have been saying above that certain conditionalities must be present before the provisions of this section can be invoked; and they are:
(1) the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it.
(2) The real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal.
(3) The need for expeditions disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
(4) The injustice or hardship that will follow if the case is remitted to the court below, must be clearly manifest itself.
In the instant case, the Appellant’s grounds of appeal concern the failure of the Learned trial Judge to decide the issue of the allegation of bias on merit by making a pronouncement one way or the other on the 2nd Respondent’s motion filed on the 20th/2/2012 and therefore none of the grounds of appeal complained on the substantive application for Judicial Review before the trial Court which was not even ripped for hearing in the trial court. In effect, the issue of nomination of candidates submitted for adjudication at the court below has not been pronounced upon by the court. The court below has not decided the substantive issue one way or the other and neither has it declined jurisdiction to determine same. There is also no ground of appeal articulating any complaint on the issue of nomination, candidature or sponsorship of candidates for election. Further to this, there are several motions listed for hearing before the court below which have not been disposed of. The jurisdiction of the court below is very much alive. It is trite that appeals are by way of rehearing. This court can only assume jurisdiction over the substantive suit if the court below had, made pronouncement touching on the substantive matter. It is only then that the Court of Appeal can, looking at the Grounds of Appeal filed in respect of the said pronouncement of the court below, assume jurisdiction to hear the substantive matter on appeal. See Ajayi vs. N.U.RT.W. (2009) 8 NWLR (PT 1144) 423 at 452, wherein it was held as follows:
“Without equivocation, I am of the view and I hold that none of the conditionalities is present in the instant matter to warrant the invocation of this court’s power under the provision of section 16. The lower court is still at cross-roads regarding the determination of its legal power to adjudicate on the suit filed before it by the applicant and his co-plaintiffs. The real issues raised by the said plaintiffs at the lower court have neither been considered nor pronounced upon one way or the other. Hence, there is no judgment of the lower court which could be appealed and from which grounds of appeal could flow for reappraisal by this court.”
Based on the position of the law and decided authorities as adumbrated above, I am of the firm view that none of the conditionalities is present in the instant appeal to warrant the invocation of this court’s power under the provisions of section 15 of the Court of Appeal Act. The real issue raised by the Appellant at the lower court have neither been considered nor pronounced upon one way or the other. This court therefore has no business whatsoever in deciding the issues raised in the main trial. The Appellant would have to await the decision of the trial court in the main trial. The appeal before us is an interlocutory appeal and the main issue before the trial court was not heard or decided on the merits.
It is for this reason and the more detailed reasons in the lead judgment of my learned brother Owoade, JCA, that I also decline the invitation of the Learned Senior Counsel for the Appellant, Mr. Ikwueto, SAN that, this court should render a decision on the substantive application for Judicial Review pending in the court below. Consequently, I also endorse the consequential order remitting this case to the Hon. Chief Judge of the Federal High Court for assignment to another Judge of the Federal High Court other than M. G. Umar, J. I also endorse the consequential order as to costs.
TIJJANI ABUBAKAR, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, M. A. Owoade, JCA.
My learned brother admirably considered and resolved all the pertinent issues that arose for determination in this appeal. I agree with his reasoning and conclusion arrived thereat. The result is that I also remit Suit No. FHC/UM/CS/92/2011 to the Hon. Chief Judge of the Federal High Court for re-assignment to another judge of the Federal High Court, other than M. G. Umar, J.
I abide by the order on costs.
Appearances
P.I.N. Ikwueto, SAN; with Chief Ikechukwu Ezechukwu, SAN;
Benji Orji, Esq;For Appellant
AND
Ben Osaka, Esq for the 1st Respondent.
Arthur Obi Okafor, SAN; with F. I. Aniukwu, Esq, Martin Okeke, Esq,
C.S. Okafor (Mrs), P.O. Okoh (Miss); for the 2nd RespondentFor Respondent
