RT. HON. ETA MBORA v. AKIBA BASSEY EKPENYONG & ANOR (2019)

RT. HON. ETA MBORA v. AKIBA BASSEY EKPENYONG & ANOR

(2019)LCN/13704(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/C/NAEA/266/2019

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

RT. HON. ETA MBORA Appellant(s)

AND

1. AKIBA BASSEY EKPENYONG

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

RATIO

WHETHER OR NOT AN APPELLANT WHO EXERCISES HIS CONSTITUTIONAL RIGHT OF APPEAL IS RESTRAINED

The law is settled that an appellant who exercises his constitutional right of appeal is not thereby restrained. Thus, where a party is appealing against a matter in which he had suffered defeat and asked for a stay of execution pending the determination of the appeal, he would not be held liable for contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending appeal. The refusal of the right of audience to a counsel does not operate to restrict the constitutional right of a party to appeal against the decision by a counsel of their choice. See ADAMA V MAIGARI (2019) 3 NWLR (pt 1658) 26. PER SHUAIBU, J.C.A.

THE MEANING OF WHEN A SUIT IS ACADEMIC

A suit is academic if it is not related to practical situation of human nature and humanity. However, a suit does not become academic simply because what gave rise to the action is concluded. See OYENEYE V ODUGBESAN (1972)4 SC 244. NKWOCHA V GOV. ANAMBRA STATE (1984) 1 SCNLR 634 and DAHIRU V APC (Supra). PER SHUAIBU, J.C.A.

WHETHER OR NOT A PERSON HAS A RIGHT TO INSTRUCT OR BRIEF ANY COUNSEL OF HIS CHOICE IN RESPECT OF ANY ISSUES HE IS INVOLVED IN

The general principle is that every person in Nigeria has a right to instruct or brief any counsel of his choice in respect of any issue, matter or case he is involved in. Inherent in this right is the power of the citizen to change his counsel as he desires at any stage of the issue, matter, or case, without giving any reason for doing so, and to engage as many firms as he can afford to represent him. It is a right that is clearly implicit in Section 36 of the 1999 Constitution (as amended). See OKODUWA V STATE (1988) 2 NWLR (pt 76) 333, UKWENI V GOV. CROSS RIVER STATE (2008) 3 NWLR (pt 1073) 33 and UNITY BANK PLC V OLATUNJI (2015) 5 NWLR (pt 1452) 203 at 236 ? 237. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National and State Houses of Assembly Election Tribunal sitting at Calabar, Cross River State delivered on 13th June, 2019 wherein the lower Tribunal upheld the 1st respondent?s objection to the appearance of Ntufam Mba E. Ukweni, SAN on behalf of the appellant therein.

By a motion on notice filed on 20/5/2019 and brought pursuant to Rule 1, 17 and 19 of the Rules of professional Conduct 2000 paragraph 47 of the 1st Schedule to the Electoral Act 2010 (as amended) and under the Inherent Jurisdiction of the Tribunal, the petitioner as applicant thereat, prayed for the followings: –
1. An Order of the Tribunal disqualifying the 1st respondent?s counsel on record i.e. Ntufam Mba E. Ukweni, SAN from taking any further step in this petition, on account of conflict of interest.
?2. An Order of the Tribunal striking out any process signed and sealed under the hands of Ntufam Mba E. Ukweni, SAN as well as other processes signed by his associates including the 1st respondent?s reply to the petition and memorandum of

appearance.
3. And for such further Orders as the Honourable Tribunal shall deem fit to make in the circumstances.
The grounds upon which the said application is predicated are: –
1. That in Appeal No. CA/C/62/2019: SIR JOHN OCHALA & 5 ORS V. HON. GODWIN ETIM JOHN & 2 ORS and Appeal No. CA/C/70/2019:ALL PROGRESSIVES CONGRESS V. GODWIN ETIM JOHN, being pre-election proceedings, the 1st respondent?s counsel on record, i.e. Ntufam Mba E. Ukweni SAN appeared for the all Progressive Congress (APC) ? the political party sponsored the petitioner in the election, that is the subject matter of the petition.
2. That both Appeal No CA/62/2019 and Appeal NO CA/70/2019 being pre-election proceedings touched upon the validity and lawfulness of the nomination of the petitioner to contest the election, subject matter of the petition.
3. That Ntufam Mba E. Ukweni SAN, having fought fervidly at the Court of Appeal to vindicate and or resave the rights of a class of litigants, including the petitioner cannot do a complete 360-degrees u-turn to deny the same rights.
4. That the 1st respondent?s

counsel, i.e. Ntufam Mba E. Ukweni SAN, in the course of prosecuting Appeal No CA/62/2019 and Appeal No CA/70/2019, received instructions, by which he secured firsthand knowledge of confidential information, by virtue of his position as counsel but now, seeks to deploy same against the petitioner.
5. That the extant rules guiding the conduct of legal practitioners in Nigeria codifies the duty of a legal practitioner to avoid conflict of interest when dealing with clients or their privies.
6. That the extant rules enjoins and or mandates a legal practitioners to guard jealously information garnered while rendering legal services to clients or their privies.

The 1st respondent opposed the above application and in furtherance of which he relied on the 22 paragraphs counter affidavit filed on 24/5/2019 and deposed to by Mba Ekpezu Ukweni, the lead counsel for the 1st respondent.

After hearing the application and the response of counsel opposing same, the lower Tribunal granted the petitioner/applicant?s first prayer at page 465 of the record of appeal as follows:-
?I am persuaded that there is merit in the 1st prayer contained

in this application and it ought to be granted by this Honourable Tribunal. May I also add going by the decision of the Court of Appeal in the case of CHIEF IKENNA EGBUNA V. MR. ALEXANDER AGHA (Supra), that it is not only the learned silk as lead counsel who ought to be disqualified from representing the 1st respondent against the present petitioner but any counsel from the law firm of the learned SAN, Ntufam, Mba E. Ukweni Esq. is equally disqualified from representing the 1st respondent against the present petitioner in this petition.?

Dissatisfied by that ruling, appellant appealed to this Court vide a notice of appeal filed on 13/6/2019. The said notice of appeal contains four grounds of appeal at pages 467 ? 472 of the grounds of appeal.

At the hearing of the appeal on 16/7/2019 Mba E. Ukweni, SAN leading U. O. Igwenyi Esq on behalf of the appellant adopted and relied on the appellant?s brief of argument and the appellant?s reply brief respectively filed on 2/7/2019 and 12/7/2019 in urging this Court to allow the appeal and to dismiss the 1st respondent?s preliminary objection. Ikoro N. A. Ikoro

Esq. adopted and relied on the 1st respondent?s brief of argument in corporating the preliminary objection and filed on 8/7/2019 in urging this Court to uphold the objection and or to dismiss the appeal.
?
Distilled from the four grounds of appeal, learned counsel for the appellant formulated three issues for the determination of this appeal as follows: –
1. Whether the hearing and determination of the 1st respondent?s motion outside the pre-hearing session and without leave of the Tribunal to do so did not amount to contravention of the mandatory provision of Paragraph 47(1) of the First Schedule to the Electoral Act, 2010 (as amended) and thus, render the entire proceedings and the decision that arose therefrom a nullity? (Distilled from ground 1).
2. Whether the decision of the National and State Houses of Assembly Election Tribunal disqualifying Ntufam Mba E. Ukwenyi SAN and all counsel in his chambers from representing the appellant herein in petition NO EPT/CAL/HR/07/2019 on account of conflict of interest and on ground of his appearance for the All Progressive ?Congress, APC in Appeal Nos. CA/C/62/2019 and CA/C/70/2019

which decision/Order was made to apply to petition No. EPT/CA/HR/08/2019 is not a misapplication of the decision in Onigbongbo Community vs Minister of Lagos Affairs & Ors (1971)1 UILR 235, (1971) 1 NSCC 186 and Chief Ikenna Egbuna v Mr. Alexander Agha (2015) LPELR ? 2588 (CA)? (Distilled from ground 2 and 4.
3. Whether learned judges of the Election Tribunal gave a due and dispassionate consideration to all issues of law and facts duly raised and placed before them in their ruling on the 1st respondent?s motion? (Distilled from ground 3).

Learned counsel for the 1st respondent adopts the three issues formulated by the appellants while the 2nd respondent who was duly served with both the hearing notice and the respective briefs of argument opted not to file any brief of argument. Therefore, the 2nd respondent will not be heard on this appeal.
?
Before proceeding to consider the argument of learned counsel on their respective briefs of argument; it is pertinent to at this juncture, consider the opposition to the appearance of learned senior counsel Mba E. Ukweni by counsel to the 1st respondent who

contended that same negates the subsisting order of the Tribunal that barred him from participating in the petition giving rise to this appeal. He submitted that this appeal being a continuation of the petition No. EPT/CAL/HR/08/2019 before the lower Tribunal and thus Mr. Ukwenyi cannot appear before this Court. In aid, learned counsel relied on the decision in NWOSU V OGAH (2016) LPELR ? 40851.

On his part, learned counsel for the appellant submitted that an appeal is an exception to the rule that says that you must comply with decision of a Court. Thus, a person against whom a decision has been given has a constitutional right to appeal against such a decision.

By virtue of the provisions of Section 287 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the decision of all the Courts established by the said constitution shall be enforced in any part of the Federation by all authorities and persons. Similarly, every judgment of the Court is subsisting and binding until it is set aside. And thus, it does not lie in the mouth of any party to say that it disobeyed the judgment or orders of a Court simply

because he did not believe it was right or legitimate. To that extent, the order of the lower Tribunal disqualifying the lead counsel, Ntufam Mba E. Ukweni, SAN from representing the 1st respondent against the petitioner thereat ought not to be disobeyed as same remains valid and subsisting until it is set aside. This is premised on the principle that the dignity and honour of Court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. See J. B. ESTATE DEV. & PROPERTIES LTD V NZEGWU (NO) (2016) 6 NWLR (pt 1507) 117, OKO-OSI V AKINDELE (2013) LPELR ? 20353 and ABBAS V SOLOMON (2001) 15 NWLR (pt 735) 144.

In the instant case, learned counsel Ntufam Mba E. Ukweni, SAN is appealing against the very decision of the lower Tribunal disqualifying him from representing the 1st respondent at the said Tribunal. An appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law; the lower Court arrived at the right decision. No matter how badly a

litigant has behaved, if he has a right of appeal, he has a right to be heard. This is for simple reason that if he is not heard, his right of appeal is valueless.In the result, the learned counsel Ntufam Mba E. Ukweni SAN has a constitutional right to appear before this Court to challenge by way of appeal against the decision of the lower Tribunal barring him from appearing to represent the appellant before it.

I now come back to the issues for determination formulated by the appellant and adopted by the 1st respondent herein.

4. ISSUE NO I
Arguing this issue, learned counsel for the appellant referred to paragraph 47 (1) of the First Schedule to the Electoral Act, 2010 (as amended) in submitting that all motions shall come up at the pre-hearing session, except in the extreme circumstances with leave of the Tribunal. He further submitted that the entire proceedings leading to the hearing of the petitioner?s motion as well as the order disqualifying Ntufam Mba E. Ukweni, SAN are a nullity same having ignored the laid down procedure. He referred to SANUSI V. AYOOLA (1992) 3 NWLR (pt 136) 22 at 32, OTU V. A.C.B. INTERNATIONAL BANK PLC

(2008) 3 NWLR (pt 1073) 179 at 197?198 to the effect that any order made on such incompetent motion is invalid and a nullity which ought to be set aside.

On the part of the 1st respondent, learned counsel contends that the First Schedule to the extant Electoral Act has not given directives on how a respondent should questioned non-compliance and as such, recourse must be had to paragraph 54 thereof which directs that the Federal High Court Civil Procedure Rules 2009 shall apply. He thus submitted that the appellant having taken steps, he cannot turn round to challenge the competence of the 1st respondent?s motion under whatever guise. According to the learned counsel, a party is not allowed to approbate and reprobate at the same time and in the same suit. He referred to UDE V. NWARA (1993) 2 NWLR (pt 278) 638 at 662 ? 663.
?
Still in argument, learned counsel submitted that having not raised an objection timeously and the lower Tribunal having told the 1st respondent to proceed with his motion means that the leave was impliedly granted. He further submitted that failure to comply with any

provision of the First Schedule to the Electoral Act is an irregularity that does not affect the jurisdiction of the Tribunal. He referred to ABUBAKAR V. DANKWAMBO & ORS LPELR 25698 and INEC V. MBAWIKE & ORS (2017) LPELR ? 41623.

ISSUES NOS 2 & 3
On these issues, learned counsel for the appellant referred to Exhibits MEU ? 2, MEU ? 2A, MEU -3 MEU ? 3A, MEU-4 and MEU-5 to contend that the Tribunal was wrong to referred to those cases as pre-election matters. Still in contention, learned counsel argued that the lower Tribunal did not just refuse to examine the exhibits, and give due appraisal to them, they infact condemned the appellant for attaching those documents which were to assist them do justice on the matter. He thus submitted that the failure of the lower Tribunal to consider those Exhibits and make pronouncement one way or the other on each of them has occasioned a miscarriage of justice. He referred to WAKILI V. BUBA (2016) 13 NWLR (pt 1529) 323 at 346 and EZECHUKWU V. ONWUKA (2016) 5 NWLR (pt 1506) 529 at 553.
?
Respecting the 1st

respondent?s motion vis?a?vis the applicable law, learned counsel submitted that the appearance of Mba E. Ukweni SAN for All Progressives Congress (APC) in Appeals Nos. CA/C/62/2019 and CA/C/70/2019, exhibits MEU -4 and MEU -5 does not amount to conflict of interest or breach of rules 1, 17, 19 and 21 of the Rules of professional Conducts for legal practitioners 2007.

It was further submitted on the appellant?s behalf that the lower Tribunal overstretched the law while relying on the decisions in Onigbongbo Community v Minister of Lagos Affairs (1971)1 UILR 235 and EGBUNA V AGHA (2015) LPELR 25881 in barring Ntufam Mba E. Ukweni, SAN from representing the appellant herein in the petition before the Tribunal. The said decisions according to the learned counsel supports the case of the appellant and this Court was urged to apply on the said principles in allowing the appeal as the issues in Appeal Nos. CA/C/62/2019 and CA/C/70/2019 are not such that could prevent Ukweni, SAN from representing the appellant herein in the petition before the Tribunal.
?
Continuing, learned counsel referred to the

averments in paragraphs 16, 18, 19, 20 and 21 of the counter affidavit to contend that Mr. Ukweni SAN has never represented the 1st respondent herein in any case. He submitted that there is a distinction between a pre-election dispute and a post-election dispute and that a careful perusal of exhibits MEU-2, 3, 4 and 5 will reveal that the dispute therein did not emanate from pre-election dispute but from disputes relating to congresses of the party, APC in Cross River State. He referred to DICKSON V SYLVA (2017) 10 NWLR (pt. 1573) 299 at 333 ? 334. It was finally submitted that the issue of privies or class of litigants raised by the 1st respondent and agreed by the lower Tribunal does not arise at all.
?
On the part of the 1st respondent, learned counsel submitted that there is a clear conflict of interest in the instant case. And that the learned counsel for the 1st respondent having secured personal knowledge of confidential facts by virtue of his position as lead counsel for the All Progressives Congress in both appeal NOs CA/C/62/2019 and CA/C/70/2019, he must be restrained from causing harm to the petitioner. He

referred to Rule 19 (i) of the Rules of Professional Conduct for Legal Practitioners, 2007 and the cases of ONIGBONGBO V MINISTER OF LAGOS AFFAIRS (Supra) UJO V ROTIFA (1981) 2 OY. SHC 312 and RE WRIGHT 13 WACA 119 to the effect that the jurisdiction to restrain counsel from acting for the antagonist of his former client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owes to another.

I have stated right from the onset that the 1st respondent has filed a notice of preliminary objection challenging the competent of this appeal wherein the argument in respect of the preliminary objection was incorporated at pages 4 ? 7 of the 1st respondent?s brief of argument. The grounds for the objection are as follows: –
(a) The Notice of Appeal and Brief of Argument emanated from Damian D. Dodo, Esq. SAN who had the instructions of All Progressives Congress (APC) to vindicate the right of the 1st Respondent as evidenced at page 215 of the record of appeal.
(b) An appeal is a continuation of hearing from a lower Court/tribunal and the subject matter of the petition at the

Trial Tribunal relates to orders for status quo and motion for stay of Execution in appeals NOs CA/C/62/2019 and CA/C/70/2019 of which the learned Senior Advocate Damian D. Dodo SAN was briefed as counsel and also appeared as counsel.
(c) The involvement of D. D. Dodo, SAN constitutes conflict of interest having regard to the fact; the instant appeal is a continuation of hearing of PETITION No EPT/CA/HR/07/2019.
2. The appeal is academic as hearing of the petition has been concluded.
?
Proffering argument on the above objection, learned counsel for the 1st respondent herein contended that the petitioner/1st respondent is a member of APC and whose name was submitted to the 2nd respondent as a candidate for the party but his name was de-listed hence D. D. Dodo, SAN was instructed to vindicate their candidature. Hitherto, before this Court, D.D. Dodo, SAN lend his voice to the submission of Mr. Awa Kalu in urging the Court to grant stay in appeal Nos. CA/C/62/2019 and CA/C/70/2019. He thus submitted that D. D. Dodo, SAN must be estopped from doing any act contrary to the duty he owes the 1st respondent in the previous appeals.

He referred to Rules 17 and 21 of Professional Conduct of Legal Practitioners in Nigeria which prohibit a counsel from acting for two or more persons where there is a apparent conflict of interest.

Replying the preliminary objection, learned counsel for the appellant submitted that there is nothing wrong in law neither is there a bar restraining a party who is aggrieved of a decision of a lower Court from challenging same on appeal to a higher Court as the essence of appeal is to cause a reversal of the decision of the lower Court being questioned. He referred to HUANG V BELLO (1990) 6 NWLR (pt 159) 671 at 678 to the effect that both Ntufam Mba E. Ukweni, SAN and D. D. Dodo, SAN are not estopped from pursuing this appeal on behalf of the appellant.

Still in contention, learned counsel argued that the petition is still alive and same was adjoined from Sunday, the 13th day of July, 2019 to Monday, the 15th day of July 2019 for continuation of hearing. He referred to DAHIRU V APC (2017) 4 NWLR (pt 1555) 218 to submit that a suit does not become academic simply because what gave rise to the action is concluded.
?
The complaint of the 1st

respondent is that D. D. Dodo, SAN who represented All Progressives Party (APC) in appeals Nos. CA/C/62/2019 and CA/CD/70/2019 cannot sign the extant notice of appeal as doing so would amount representing a conflicting interest.

The provenance of the instant appeal is the refusal of the right of audience to Ntufam Mba E. Ukweni, SAN at the lower Tribunal. The law is settled that an appellant who exercises his constitutional right of appeal is not thereby restrained. Thus, where a party is appealing against a matter in which he had suffered defeat and asked for a stay of execution pending the determination of the appeal, he would not be held liable for contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending appeal. The refusal of the right of audience to a counsel does not operate to restrict the constitutional right of a party to appeal against the decision by a counsel of their choice. See ADAMA V MAIGARI (2019) 3 NWLR (pt 1658) 26.
?In so far as the appellant has a right to engage a counsel of his own choice, a refusal of a right of audience to that counsel as in this case

would operate to restrict the constitutional right of the appellant to appeal against the decision of the lower tribunal. An appeal is also a constitutional right which cannot be taken away or denied an appellant. Therefore, no Court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal. Thus, neither Ntufam Mba E. Ukweni, SAN or D. D. Dodo SAN would be denied audience in this appeal. The question as to whether there is a contravention of the Rules of professional Conduct of Legal Practitioners by representing a conflicting interest being the main issue in this appeal cannot be decided at this primary stage.

The next germane issue is whether this appeal is spent, hypothetical or academic. A suit is academic if it is not related to practical situation of human nature and humanity. However, a suit does not become academic simply because what gave rise to the action is concluded. See OYENEYE V ODUGBESAN (1972)4 SC 244. NKWOCHA V GOV. ANAMBRA STATE (1984) 1 SCNLR 634 and DAHIRU V APC (Supra).
?
In this case, hearing in the said petition is still on-going

and same cannot by any stretch of imagination be academic or hypothetical as wrongly submitted by learned counsel for the 1st respondent. The preliminary objection of the 1st respondent is moribund and it is hereby overruled.

Having overruled the 1st respondent?s preliminary objection, I will now turn back to the merit of the appeal. The crux of the appellant?s complaint on issue No.1 centered on the failure of the lower Tribunal to hear and determine the 1st respondent?s motion outside the pre-hearing session. The relevant paragraph 47(1) of the First Schedule to the Electoral Act 2010 (as amended) provides: –
?No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstance with leave of Tribunal or Court.?
Perhaps, one need to emphasis here that pre-trial sessions are a condition precedent before a tribunal or Court can proceed to entertain any election petition or matters relating thereto. And where a Court or tribunal lacks the competence and jurisdiction to entertain a matter, the proceedings conducted thereon are a nullity.
?Learned counsel for the 1st

respondent did not contest the fact that the proceedings of 7th May, 2019 to those 13th June, 2019 were done prior to the pre-hearing conference. In fact, it was after the delivery of the ruling now on appeal that the lower tribunal adjoined the petition to 20/6/2019 and fixed pre-hearing to commence at 1p.m. (See page 460 of the record of appeal. For the 1st respondent to bring an application before the commencement of pre-hearing session, the following conditions must be met and these are;-
(1) that the circumstances for bringing the motion must be of extreme nature, and
(2) It must be with leave of the Tribunal or Court, first sought and obtained.
?I have elsewhere in this judgment reproduced the grounds upon which the said application was predicated. Also the affidavit in support of the application was carefully examined but it was nowhere shown that the circumstances for bringing that application was of extreme nature. Worst still, no leave of the Tribunal was sought and obtained.
Where legislation lays shown a procedure for doing a thing, there should be no other method of doing it. In this case, the necessary procedure to be adopted

in cases of motion outside the pre-hearing sessions is as laid down in paragraph 47 (1) of the First Schedule to the Electoral Act 2010 (as amended).
Learned counsel for the 1st respondent also took refuge on paragraph 53 of the First Schedule to the said Electoral Act to contend that the failure on the part of the lower Tribunal was a mere irregularity which was implicitly waived by the appellant having taken further step in the proceedings.
I have held that paragraph 47 (1) of the Electoral Act lays down the procedure for bringing such an application and there was failure to follow the conditions precedent which in my view affects the props and foundation of the said application. It was held in plethora of judicial decisions including the cases of OTU V A.C.B. INTERNATIONAL BANK (2008) 3 NWLR (pt 1073) 17, U.T.B. V ODOFIN (2001) 8 NWLR (pt 715) 296 and REAN PLC V ANUMNU (2003) 6 NWLR (pt 815) 52 that where leave is required either in the Constitution or in the Rules of Court before filing a motion, and leave is not sought and granted; the Court has no jurisdiction to grant the motion as it is incompetent.

Likewise, an order on such an incompetent motion is invalid.
In the instant case, the failure to sought and obtained the leave of the lower Tribunal before the grant of the motion of 2015/2019 rendered it incompetent as same was granted without jurisdiction. It therefore, follows that the orders thereby granted are also incompetent.

The fuss on issues No.2 and 3 seems to be largely on the disqualification of Ntufam Mba E. Ukweni, SAN and all counsel in his chambers from representing the appellant at the lower Tribunal in petition No. EPT/CA/HR/08/2019 on account of conflict of interest arising from his appearance for All Progressives Congress, APC in appeals Nos. CA/C/62/2019 and CA/C/70/2019.

Learned judges of the lower Tribunal were unanimous at pages 464 ? 465 of the record of appeal when they held thus:-
?It is not in dispute that what calls for determination in this petition is the action taken by the 2nd respondent herein consequent upon the decision of the Courts in respect of the various pre-election cases which the petitioner contends led for his cause of action in this petition. In effect this petition flowed

directly from the pre-election cases, and the learned senior counsel for the 1st respondent actively participated in the said cases on behalf of the petitioner?s party and invariably on behalf of the practitioner. It is a trite principle of law that the learned silk for the 1st respondent cannot approbate and reprobate at the same time.?

counsel of their choice, a person must not be allowed to employ the services of counsel where it is clear that the services to be rendered flows out of or are closely related with the previous services he had rendered to the opposing side. The counsel on the other hand has a corresponding duty not to accept a brief that flows or is closely related to his previous brief. In effect, the jurisdiction to restrain counsel from acting for the antagonist of his former client stems from the principle that a man ought to be restrained from doing any act contrary to the duty he owes another. See ANATOGU M V IWEKA II (1995) 8 NWLR (pt 415) 547 and ONIGBONGBO COMMUNITY V MINISTER OF LAGOS AFFAIRS (Supra).
?The question here is, did Ntufam Mba E. Ukweni SAN rendered services to the opposing side on matters flowing out and or related to the petition before the lower Tribunal? The answer will only be discerned upon proper evaluation of the affidavit evidence placed before the lower Tribunal. This is so because it is wrong to suggest that counsel may not act against someone whom he acted for in a matter bearing no resemblance to the present

case. In ONIGBONGBO COMMUNITY V MINISTER OF LAGOS AFFAIRS & ORS cited and relied upon by both counsel, the Supreme Court was very emphatic that since the counsel in question had led in a former appeal for the appellant purely on a question of title to land there was nothing wrong in his appearing for the other side in subsequent proceedings between the two parties to settle compensation claims for the same land.

Learned counsel for the appellant has alluded to the fact that had the lower Tribunal examined and considered Exhibits MEU-2 ? 5 attached to the counter affidavit it would have come to a correct decision that the services rendered by Ntufam Mba E. Ukweni, SAN in Appeals NOs. CA/C/62/2016 and CA/C/70/2016 were not connected or related with the petition before the Tribunal and thus there was no conflict of interest.

It is settled that a trial Court is vested primarily with the responsibility to assess and accord probative value to issues or evidence placed before it no matter how stupid such evidence appears to be on the surface. It is therefore for the trial Court in the course of that evaluation to make a finding

of fact relative to the evidence before it. And for a trial Court and indeed any Court at all to gloss over any piece of evidence placed before it on account of same not being worthy of consideration is a serious breach on the right of the party affected to have his case properly considered and adjudicated. See AKILU V BUBA (supra).

In paragraphs 7 ? 21 of the counter affidavit to the petitioner?s motion to disqualify Ntufam Mba E. Ukweni, SAN from taking any further step in the petition at pages 211 ? 214 of the record of appeal the allegation of representing conflicting interests was out rightly denied and it read thus: –
7. I have carefully gone through the motion and the processes supporting it. I am surprise that the Petitioner and his counsel, did not attach copies of the processes in those earlier cases which they are saying I handled for the Petitioner herein that are in conflict with the instant petition.
?8. I do not dispute paragraphs 1, 2, 3 and 4 of the affidavit in support of the motion deposed to by my learned friend, Chuka Obidike, but I maintain in answer to paragraphs 5 and 6 thereof that, I

held the brief of Mr. Damian D. Dodo, SAN, learned Senior Counsel for the all Progressives Congress in those matters and Mr. Chuka Obidike is fully aware of that fact. I have a copy of the letter of instruction given to Mr. D. D. Dodo, SAN by Comrade Adams Oshiomole, National Chairman of the All Progressives Congress to handle Appeal No. CA/C/70/2019. It is hereto attached and marked EXHIBIT MEU-1.
9. Paragraph 7 of the supporting affidavit is not wholly true, and I hereby deny it to the extent of its incorrectness. Those appeals arose from the judgment of the Federal High Court, Calabar Judicial Division in Suit No. FHC/CA/CS/73/2018: Hon. Godwin Etim John & Ors v. All Progressives Congress & 3 Ors which was decided by His Lordship, The Honourable Justice S. A. Amobeda on Monday, the 11th day of February, 2019.
10. Those matters, including the appeals mentioned in paragraph 7 of the supporting affidavit of Chuka Obidike dealt with issues touching on the internal leadership crisis within the APC in Cross River State. They are disputes that arose from the Wards, Local Government Areas and State congresses of the APC in Cross River

State held on the 11th, 12th, 15th, 16th and 18th days of May, 2018. On the other hand, the instant petition is a fallout of the 2019 General elections conducted by the 2nd respondent herein. It is the Petitioner?s challenge of the 2nd Respondent?s declaration of the 1st Respondent as the winner of the election. It has nothing to do with the Congresses of the APC or which of the two Factions of the APC in the state should present candidates for the Party.
11. The claim before the Federal high Court, Calabar Judicial Division in Suit No. FHC/CA/CSD/73/2018 was the enforcement of the judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/BW/CV/106/2018: Mr. Sylvester Okpo & 2 Ors v. All Progressives Congress delivered by His Lordship, Hon. Justice O. A. Musa on Thursday, the 20th day of September, 2018 in respect of the dispute in the Cross River State Chapter of the All Progressives Congress as to who amongst the parties therein were the properly elected Wards, Local government Areas and State Executive Committee members of the All Progressives Congress in Cross River State.
?12. It was an

internal or intra party dispute relating to the Wards, Local Government Areas and State congresses, not even the Party primaries of the all Progressives Congress in Cross River State. The main grievance and contention of the Appellants in Appeal Nos. CA/C/62/2019 and CA/C/70/2019 was because the Judge of the Federal High Court, Calabar, S. A. Amobeda, J, went outside the issues/claims before him to make pronouncements enumerated in paragraph 9 of the supporting affidavit or what His Lordship called ?consequential orders?.
13. The consequential orders removed all the candidates of the All Progressive Congress in Cross River State nominated for the elections, which were not the issues before the Court. In fact, that was one of the major reasons why the judgment of the Federal High Court was set aside by the Court of Appeal. I have copies of the judgments and orders of:
i) The High Court of the Federal Capital Territory, Abuja in Suit No. FHC/HC/BW/CV/106/2018.
ii) The Federal High Court, Calabar, in Suit No. FHC/CA/CS/73/2018;
?iii) The Court of Appeal, Calabar Judicial Division in appeal Nos. CA/C/62/2019 and

CA/C/70/2019.
They are hereto attached and marked EXHIBITS MEU-2,2A,3,3A,4 and 5 respectively.
14. I have personally gone through those judgments and the proceedings in those matters which are quite bulky and cumbersome to attached hereto and I know as a fact that the dispute in those cases are different from that in the instant Petition No. EPT/CA/HR/08/2019, where the Petitioner herein is complaining of being excluded by the 2nd Respondent herein from participating in the House of Representatives election of Saturday, the 23rd day of February, 2019.
15. My answer to paragraphs 10 and 11 of the supporting affidavit of Mr. Chuka Obidike is that both the parties in those cases, the lawyers who represented the parties and the subject matter in dispute in those cases including the consequential orders made by Amobeda J. in Suit No. FHC/CA/CS/73/2019 are not the same with the issues in the instant petition. The issues are distinct from what is in contention in this petition.
?16. I was not counsel to the Petitioner in this petition in those appeals and I received no instruction from him to represent his interest in those cases. He

has no interest in those cases that is now considered to be in conflict with the instant matter. The 1st Respondent was not a party to those cases which were purely domestic disputes of the APC members as to who will control their party structure in Cross River State.
17. The 1st Respondent and I are card carrying members of the Peoples Democratic Party, PDP. He was the candidate of PDP and not APC. The 1st Respondent did not contest for any of the positions that were in contention in those cases. He was not a party to those cases. I am at a lost on how the internal disputes of the APC arising from their congresses and primary elections in the State, which the 1st respondent did not contest, will be an issue in this petition. Again, I do not see how my appearance for the APC in those appeals amount to conflict of interest in an election petition, which I know as a fact, is a post-election and inter-dispute, challenging the election and return of the 1st Respondent, the candidate of the PDP by the 2nd Respondent, the umpire in the election.
?18. In specific answer to paragraph 11 of the supporting affidavit of Chuka Obidike, I state that I was not

the one that represented the interest of litigants who were candidates of the APC in Cross River Sate in those appeals. It was learned Senior Counsel to the Petitioner herein, Awa U. Kalu, SAN, FNIALS who represented the interest of those class of litigants in Appeal NO. CA/C/62/2019. He applied on their behalf to appeal against the judgment of Amobeda, J. as interested parties.
19. I have neither represented nor acted for the Petitioner herein in any case; including the aforementioned cases. Instead, I have always represented the Peoples Democratic Party and its candidates, particularly the 1st Respondent herein in the various election petitions filed against them. In the year, 2015, we did many petitions and the appeals arising from on behalf of the 1st Respondent herein and our party, the PDP. Among them were:
i) Petition No. EPT/CR/NA/13/2015: Hon. Victor Ikpeme & Anor v. Ntufam (Hon.) Etta Mbora & 5 Ors.
ii) CA/C/NAEA/156/2015: All Progressive Congress, APC V Ntufam (Hon.) Etta Mbora & 5 Ors.
iii) CA/C/NAEA/171/2015: Ntufam (Hon.) Etta Mbora &n 5 Ors vs. Hon. Victor Ikpeme & Ors.
iv) EPT/CR/NAEA/216/2015:

Barr. Eyo Nsa Ekpo & Anor vs. Hon. Victor Ikpeme & 5 Ors.
v) CA/C/NAEA/219/2015: Hon. Victor Ikpeme & Anor v. Ntufam (Hon.) Etta Mbora & 5 Ors.
20. It is not correct as stated by Mr. Obidike in paragraph 12 of the supporting affidavit that I received instructions in the course of prosecuting Appeal Nos. CA/C/62/2019 and CA/C/70/2019 by which I secured first-hand knowledge of confidential information by virtue of my position as the Petitioner?s counsel, which I now seek to deploy against the Petitioner and in favour of the 1st Respondent. The Petitioner has never briefed me to do a case for him from where I could secure confidential information to use against him. I did not secure any confidential information in those appeals that can be used against the Petitioner in this petition. I have not done that before and I will never do it.
?21. I recognize my solemn duty to my clients as a Legal Practitioner stated in paragraph 13 of his affidavit in support of the motion. The postulation therein is not applicable to the instant case. I did not receive any instruction from the Petitioner which I have used or likely to be used

against him in this petition. My Law Firm, Mba E. Ukweni & Associates handles virtually all the political matters concerning the 1st Respondent.

The lower Tribunal on its part found at page 462 of the record of appeal as follows:-
?To the affidavit the 1st Respondent filed a counter affidavit deposed to by the learned silk himself Mba Ekpezu Ukweni Esq. SAN. By the 22 paragraph counter affidavit the learned silk laboured to show why this application should not be granted. Voluminous documents were attached to the counter affidavit as exhibits.?

?From the above, the lower Tribunal did not appraise evaluate and fix value to the evidence placed by the 1st respondent thereat. Nothing has been said about the voluminous documents attached to the counter affidavit. A document attached to an affidavit as an exhibit forms part of the affidavit and any person who is entitled to inspect the affidavit has a right to demand an inspection of the exhibit being an integral part of the affidavit. Thus, material facts in a counter affidavit not denied by a reply affidavit are the true position as depositions in an affidavit on material

facts resolve applications in Court. See AKITI V OYEKUNLE (2018) 8 NWLR (pt 1620) 182.

Although the trial Court has the primary responsibility of assessing and according probative value to issues or evidence, the appellate Court has a corresponding duty to re-assess and evaluate the evidence in order to reach a just conclusion. This duty arises where the trial Court failed to evaluate the evidence or failed to evaluate it properly or where the evaluation results in a perverse conclusion. See GONZEE (NIG) LTD V N.E.: R.D.C. (2005) 13 NWLR (pt 943) 634 OGUNLEYE V ONI (1990) 2 NWLR (pt 135) 745, EZEUKO V STATE (2016) 6 NWLR (pt 1509) 529 and ARIJE V ARIJE (2018) 16 NWLR (pt 1644) 67.

A careful and meticulous consideration of exhibits MEU-2 ? 5 attached to the said counter affidavit reveals that the disputes in Appeals Nos CA/C/62/2019 and CA/C/70/2019 did not emanate from pre-election disputes, but disputes relating to the congresses of the party (APC) in Cross River State. An intra ? party dispute is defined to mean a dispute between a member or members on the one hand

or and the party on the other hand. See DAHIRU V APC (2017) 4 NWLR (pt. 1555) 218.

Pre-election dispute on the other hand denotes to a preliminary election where delegates or nominees are chosen. In the con of Section 87 (9) of the Electoral Act 2010 (as amended), a dispute is a pre-election dispute when the following situations are present:-
(a) A disputant is an aspirant who participated in primary election of his political party,
(b) The complaint must arise from non-compliance with the party?s constitution and guidelines and or the provisions of the Electoral Act. See UGWU V PDP (2015) 7 NWLR (pt 1459) 478 PDP V SYLVA (2012) 13 NWLR (pt 1316) 85 APGA V ANYANWU (2014) 7 NWLR (pt 1407) 541 PDP v EZEONWUKA (2018) 3 NWLR (pt 1606) 187 and ODUAH V OKADIGBO (2019) 3 NWLR (pt 1660) 433.

In the instant case, what is before the lower Tribunal is neither an intra party dispute nor a pre-election dispute but a post election dispute questioning the undue election or undue return under the provision of Section 133 (1) of the Electoral Act (As amended). It

is thus clear from the above that the 1st respondent herein was not a party to those cases and he did not engage the services of Ntufam Mba E. Ukweni, SAN. And since the services to be rendered by Ntufam Mba E. Ukweni, SAN in the petition before the lower Tribunal did not flows out of or closely connected with any previous services rendered, there was indeed no legal justification in disqualifying Mr. Ukweni from representing the appellant at the lower Tribunal.

In the result, the appeal succeeds and it is hereby allowed. The 1st respondent?s motion which gave rise to this appeal is hereby struck out for being incompetent. Parties shall however bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed Lawal Shuaibu, JCA.

I agree with my learned brother that the oral objection raised by the Respondent to the appearance of Mba E. Ekweni, Esq. S.A.N as counsel in this appeal indeed ought not to be countenanced as Mr. Mba E. Ekweni, SAN, has a constitutional right to appear in this Court on the subject matter of this appeal.

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I also agree with the reasoning and conclusion in the lead judgment that the main appeal is meritorious. I also allow the appeal.
I abide with the consequential order and the order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in advance, the erudite leading judgment delivered by my learned brother: Muhammed Lawal Shuaibu, JCA I endorse, in toto, the reasoning and conclusion in it. I, too, allow the appeal. I strike out the first respondent’s motion, which mothered the appeal, for being incompetent. I abide by the consequential orders decreed in the leading judgment.

Appearances:

Mba E. Ukweni, SAN with him, U.O. IgwenyiFor Appellant(s)

Ikoro N.A. Ikoro, Esq.For Respondent(s)

Appearances

Mba E. Ukweni, SAN with him, U.O. IgwenyiFor Appellant

AND

Ikoro N.A. Ikoro, Esq.For Respondent