RT. HON. PRINCE TERHEMEN TARZOOR AND v. ORTOM SAMUEL IORAER
(2015)LCN/8026(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of November, 2015
CA/MK/EP/GOV./20/2015
RATIO
APPEAL: RIGHT OF APPEAL; HOW CONSTITUTIONAL GUARANTEED RIGHT OF APPEAL IS INITIATED
The exercise of the constitutionally guaranteed right of appeal to this Court under Sections 241(1), 242(1), 244, 245(1) and 246(1) of the Constitution (as altered) is initiated by the filing of a Notice of Appeal to the Court in accordance with the provisions of the Court of Appeal Act (CAA) enacted by the National Assembly and the Court of Appeal Rules, made by the President of the Court of Appeal under the power vested by the provisions of Section 248 of the Constitution to make rules regulating the practice and procedure of the Court. Section 24 of the Court of Appeal Act provides that where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by Rules of Court. The Rules of the Court, 2011 provide in Order 6, Rule 2(4) that:
“The Notice of Appeal shall be signed by the Appellant or his Legal Representative” As subsidiary legislations made pursuant to the provisions of Section 248 of the Constitution as well as Section 8(2) of the Court of Appeal Act, the Rules draw and have the same force and effect with the foundational provisions of the ground norm and substantive law enacted by the National Assembly. See Akembi v. Alao (1989) 5 SC, 1, (1989) ALC NLR, 424, Fawehinmi v. NBA (No2) (1989) – 20 NSCC – (Pt. II) 43 at 69, (1989) 4 SC (Pt. 1) 63. per. MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: LEGAL DOCUMENT SIGNED AND FILED IN CONTRAVENTION OF RULE 10(1); THE CONSEQUENCE OF A LEGAL DOCUMENT SIGNED AND FILED IN CONTRAVENTION OF RULE 10(1) IN THE RULES
What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that “…the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) SC 521 cited by the learned Silk for 2nd Respondent/Cross-Appellant. The document, in terms of the Rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd Respondent assumed.
It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court.
In such cases, the filing of the process can be regularized by extension of time and a deeming order. In the case at hand the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the Court cannot take cognizance of a document not properly filed and the filing not regularised. per. MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: NOTICE OF APPEAL; THE EFFECT OF FAILURE TO AFFIX THE NBA APPROVED STAMP AND SEAL ON A PROCESS SIGNED AND FILED IN COURT BY A LEGAL PRACTITIONER
Rhodes-Vivour, Ariwoola and Ogunbiyi, JJSC, in their respective contributions, stated that the effect of failure to affix the NBA approved stamp and seal on a process signed and filed in Court by a legal practitioner is to render the process voidable and not void. Odili JSC, who was also on the panel, had opined inter alia, that:
“A Notice of Appeal is the originating process at an appellate court and the Notice of Appeal is clearly within the ambit of legal documents described in Rule 10(2) as “any similar documents’ which must be signed, stamped and sealed. Therefore a Notice of Appeal not found with these components is an incompetent Notice of Appeal depriving the court of the jurisdiction to determine the appeal on the merit. This within what was provided under the Legal Practitioners Act, Laws of the Federation 2004 (as amended) and the Rules of Professional conduct, Rule 10(3). In this regard the case of FBN Plc v. Maiwada & Ors (2013) 5 NWLR (Pt. 1348) 444 per Fabiyi JSC at 488 is helpful. He stated as follows, “Legal Practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of the profession.” per. MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: NOTICE OF APPEAL; WHETHER A PARTY CAN APPLY FOR EXTENSION OF TIME TO AFFIX THE STAMP AND SEAL APPROVED BY THE NBA TO A NOTICE OF APPEAL WHICH WAS SIGNED AND FILED BY A LEGAL PRACTITIONER WITHOUT IT
The apex court in the above appeal was dealing with a Notice of Appeal, just as in the present appeal and my understanding of the lead reasons which are supported by the contributions, is that a party can apply for extension of time to affix the stamp and seal approved by the NBA to a Notice of Appeal which was signed and filed by a legal practitioner without it. However, the point was not canvassed before the apex Court and it was not made by it on whether the application for extension of time to affix the approved stamp and seal could be made after the expiration of the time specifically stipulated and limited by the law for the filing of the said Notice of Appeal that was not properly signed and filed. Earlier, the apex Court in a number of cases which include ANPP v. Goni (2012) 7 NWLR (1298) 147, Oke v. Mimiko (2013) ALL FWLR (693) 1853, ACN v. INEC (2013) 13 NWLR (1370) 166 has laid down and restated the law that no Court has the power and authority to extend any of the periods of time stipulated and limited by the Constitution and the Electoral Act in election matters for which time is of crucial essence. per. MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN A SUIT OR JUDICIAL PROCEEDINGS
By the provisions of the Evidence Act 2011 generally, the burden of proof in a suit or judicial proceedings is placed and lies on the person or party who would fail if no evidence at all were given on either side in the suit or proceedings. See Section 132 of the Act. Then Section 133(1) and (2) of the Act provide that:
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) if the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
Section 131 shows what the burden of proof is in respect of any claim of a legal right or liability made before a court of law when it provides thus:
131(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. per. MOHAMMED LAWAL GARBA, J.C.A.
PRACTICE AND PROCEDURE: DECLARATORY RELIEF; ON WHAT BASIS IS DECLARATORY RELIEF GRANTED BY A COURT OR TRIBUNAL OF LAW
In addition, the law is also settled that declaratory reliefs are not granted by a court or tribunal of law either on the basis of admission, or weakness or even absence of a defence from the adverse party, without evidence adduced to establish entitlement to the reliefs by the party seeking them. See: Onu v. Agu (1996) 5 SCNJ, 74 at 87, Ala v. Okoro (1991) 7 NWLR (203) 260 at 282, Ogungimo v. Ademolu (1995) 4 (389) 254 at 269, Dabup v. Kolo (1993) 9 NWLR (317) 254. per. MOHAMMED LAWAL GARBA, J.C.A.
ELECTION PETITION: ELECTION PETITIONS QUESTIONING THE CONDUCT OF THE ELECTION; WHETHER PETITIONER WILL SUCCEED ON THE STRENGTH OF HIS OWN EVIDENCE TO BE ENTITLED TO THE RELIEFS HE CLAIMS IN THE PETITION
In all election petitions questioning the conduct of the election or the declaration and return of the winner, declaratory reliefs are sought from the Election Petitions Tribunals premised on the facts alleged or asserted forming the arrow heads of the grounds of the petition. Such reliefs are not granted merely because the Respondents did not deny effectively, the facts of the petition or even admitted them in their pleadings. The petitioner has the legal burden to prove his entitlement to them by adducing sufficient and credible evidence which would satisfy the tribunal that he is entitled in law, to the grant of the declarations sought. Even without denial by respondent to the petition, a petitioner owes the legal burden of proof in respect of the declaratory reliefs sought in his petition before they could properly be granted by the tribunal. In that regard, he is to and can only succeed on the strength of his own evidence or case in order to be entitled to the reliefs he claims in the petition. See: Woluchem v. Gudi (1981) Pt.5 SC, p.291, Bello v. Iweka (1981) Pt.1 SC, P.101. Adelaja v. Famoiki (1990) 2 NWLR (Pt. 131) p. 137, Alechendu v. Oshoke (2002) 9 NWLR (Pt. 773) p. 521, Ojukwu v. Yar’adua (supra). per. MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
RT. HON. PRINCE TERHEMEN TARZOOR Appellant(s)
AND
1. ORTOM SAMUEL IORAER
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): In the election conducted by the INEC 3rd Respondent on the 11/4/2015 for the office of the Governor of Benue State, the Appellant had contested under the platform of the Peoples Democratic Party (PDP), one of the registered political parties in the Country. The 1st Respondent, under the sponsorship of the 2nd Respondent, also contested the said election at the end of which he was declared and returned as the winner by the 3rd Respondent. Aggrieved by the declaration and return of the 1st Respondent as the winner, the Appellant, in exercise of the right conferred under Section 137(1)(a) of the Electoral Act, 2010 (as amended), challenged same by way of an election petition presented before the Governorship Election Petitions Tribunal established for Benue State, sitting at Makurdi (to be called Tribunal after now). As set out in the petition filed on the 29/4/2015, the grounds upon which it was premised are thus:
i. Your Petitioner states that the 1st Respondent, Ortom Samuel Ioraer was, at the time of the Election, not qualified/disqualified to contest the Election.
?ii. Your Petitioner states that the
Declaration and Return of the 1st Respondent aforesaid was invalid by reason of non compliance with the mandatory provisions of the Electoral Act, 2010 (as amended) and the 1999 Constitution of the Federal Republic of Nigeria (as amended).
iii. Your Petitioner states that the 1st Respondent was not duly elected by a majority of lawful and valid votes cast at the Governorship Election in Benue State held on the 11th day of April, 2015 and announced on 13th day of April, 2015.
In the premises of these grounds, the Appellant claimed the following reliefs from the Tribunal:
i. That it may be determined and doth declared that the 1st Respondent was not qualified and/or was disqualified from contesting the Election to the Office of Governor of Benue State on the 11th day of April, 2015 having not satisfied the mandatory requirements of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
?ii. That it may be determined and doth declared that based on the lawful votes cast at the said Election, the 1st Petitioner ought to have been returned as the Governor of Benue State as he scored the majority of the lawful and
valid votes cast and also satisfied other requirements of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hence all the votes cast for the 1st Respondent were invalid on account of his not being a Candidate for the Election aforesaid.
iii. That it may be determined and doth declared that the Petitioner who was the Candidate of the Peoples Democratic Party was duly Elected or Returned by the majority of lawful and valid votes cast at the Governorship Election in Benue State held on the 11th day of April, 2015 and declared on 13th April, 2015.
iv. An order of the Honourable Tribunal directing the 3rd Respondent to withdraw the Certificate of Return issued to the 1st Respondent in error and issue same to the Petitioner as the winner of the Governorship Election in Benue State held on the 11th day of April, 2015 having scored the majority of lawful and valid votes cast at the Election and also satisfied the other requirements of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
?All the Respondents filed their respective Replies to the
petition denying the facts contained therein and after settlement of pleadings and conclusion of preliminary procedures, the petition proceeded to trial at the end of which, in a judgment delivered on the 21/9/2015, the Tribunal dismissed the petition and upheld the declaration and return of the 1st Respondent as the winner of the election.
Being dissatisfied with the judgment of the Tribunal, the Appellant brought this appeal by a Notice of Appeal dated and filed on 2/10/2014, containing fourteen (14) grounds of complaints against it.
Also, not satisfied with some aspects of the judgment, the 1st and 2nd Respondents filed separate Notices of Cross Appeal against the said portions. The 1st Respondent Notice of Cross appeal was filed on 9/10/2015 while the 2nd Respondents Notice of Cross Appeal was filed on the 8/10/2015, the 1st Respondent also filed a Notice of Preliminary objection on 2/11/2015 questioning the competence of the Notice of Appeal filed by the Appellant.
In line with the Rules of the Court, briefs of argument were filed by the learned senior Counsel for the parties to the appeal and in the Appellant’s brief, settled by Mrs. J.O. Adesina, SAN
and filed on the 16/10/2015, five (5) issues were distilled from the grounds of appeal and submitted to the Court for determination in the appeal. They are as follows:
1. Whether the Tribunal did not misplace the burden and standard of proof on the pleadings by placing it on the Appellant instead of the Respondents?
2. Whether the Tribunal’s consideration of the weight of evidence on the holding of the 2nd Respondent’s Primary was not perverse?
3. Whether the 1st Respondent proved that he properly joined the 2nd Respondent to be entitled to contest the Governorship Election of 11th April, 2015?
4. Whether it was proper for the Tribunal to have relied on the provision of Section 140(2) of the Electoral Act, 2010 (as amended) to dismiss the Petition?
All the three (3) Respondents’ briefs were filed on the 20/10/2015 and the Notice of Preliminary objection was argued in the 1st Respondent’s brief.
?The 2nd Respondent had filed a motion on the 30/10/2015 challenging some grounds of the Appellant’s appeal as well as Issues 1, 2, 3, and 4 of the Appellant. The Appellant had filled a counter affidavit to the motion on 10/11/2015. The Appellant had also filed Appellant’s
Replies to the 1st and 2nd Respondents’ briefs; on the 23/10/2015 and a Reply to the 3rd Respondent’s brief on the 29/10/2015.
In respect of the 1st Respondent’s Cross Appeal, the Cross Appellant’s brief was filed on the 19/10/2015 and the Appellant/Cross Respondent’s brief was filed on the 23/10/2015. The Cross Appellant’s Reply to the 1st Cross/Respondent’s brief was filed on the 29/10/2015.
For the 2nd Respondent’s Cross appeal, the Cross Appellant/2nd Respondent’s brief was filed on the 19/10/2015, the Appellant?s/Cross Respondent’s brief in respect of the Cross appeal, was filed on 23/10/2015 and the 2nd Respondent/Cross Appellant’s Reply to the said brief, was filed on the 29/10/2015.
The Appellant/Cross Respondent had filed 2 separate motions on the 6/11/2015 praying for orders of the Court to strike out some grounds on the two (2) Notices of Cross Appeals filed by the 1st and 2nd Respondent.
?Affidavit of Fact and Further Affidavit of Fact were filed by the Appellant on the 6th and 13th of November, 2015 respectively. Lists of Additional Authorities were also filed for the Appellant and the 1st Respondent on the 1/11/2015 on which day, the appeal and
Cross appeals were heard by the Court.
At the oral hearing, Chief Adeniyi Akintola, leading Mr. A.J. Owonikoko, SAN and other Counsel for the 1st Respondent, had moved the Preliminary objection and adopted the arguments thereon in the 1st Respondent’s brief. He urged the Court to uphold it and strike out the Appellant’s Notice of Appeal for being incompetent on the ground that the stamp and seal of the legal Practitioner who signed it was not affixed thereon.
Mr. Adebayo Adenipekun, SAN, leading Mrs. J.O. Adesina, SAN and other Counsel for the Appellant, adopted the arguments in respect of the objection as contained in the Reply to the 1st Respondent’s brief and urged the Court to discountenance the objection on the ground that the Appellant’s Notice of Appeal was duly signed by a Legal Practitioner. The affidavit of fact and further affidavit of fact were relied on by Mr. Adenipekun, SAN in support of his position on the objection. He also referred to a decision by the Supreme Court in Appeal No: SC/722/2015; Yaki v. Bagudu delivered on the 13/11/2015, in which the apex Court was said to have stated that Counsel who did not affix a stamp and seal on all
legal process could apply for extension of time to do so. In that premise, he orally applied to the Court for extension of time to affix the required stamp and seal on the Appellant’s Notice of Appeal.
In reaction, Chief Akintola, SAN said the affidavits of fact filed for the Appellant in respect of the objection have no support in law and the one filed on the 13/11/2015, was not signed and so incompetent. In respect of the oral application by the learned Counsel for the Appellant, he opposed it on the following grounds:
i. It offends the provisions of Order 7, Rules 1 and 2 of the Court of Appeal Rules, 2011 (CAR, 2011) which require all applications to be by way of notice of motions supported by affidavits.
ii. That the Appellant had argued that the stamp and seal are illegal at page 5 of his Reply to the 1st Respondent’s brief and so cannot be heard to say he wants to do the illegal, thereby approbating and reprobating at the same time and that;
iii. That it is out of the time provided by the Electoral Act.
He urged the Court to refuse the oral application.
?Both Learned Senior Counsel for the Appellant and 1st Respondent had promised to provide copies of apex
Court’s decision delivered in the afternoon i.e. the date of hearing of the appeal for the guidance of the Court.
In the arguments in support of the objection, the provisions of Rule No (1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners, 2007 made pursuant to Legal Practitioners Act, Law of the Federation, 2004 and the circular No: NJC/CIR/HOC/171 dated the 12/5/2015 were relied on in arguing the Court to uphold the objection and strike out the Notice of Appeal for being incompetent, and thereby robbing the Court of the jurisdiction to entertain the appeal.
On his part, the Learned silk for the Appellant had argued that the objection offended Order 10, Rule 1 of the Court of Appeal Rules, 2011 which requires the filing of a separate notice thereof which shall be served three (3) days before the date of hearing of the appeal and arguing it separately or in the Respondent’s brief. Garba v. Ummuani (2012) LPELR – 9841 (CA) was cited and relied on for the submission.
?On the merit of objection, it was submitted that the Appellant’s Notice of Appeal was signed by a known Legal Practitioner whose name was clearly indicated thereon and who was
not only enrolled at the Nigerian Bar but elevated to the Inner Bar. That the Legal Practitioner had applied for and was sent the stamp and seal of the Nigerian Bar Association (NBA) which contained a vital error in her name. She had to return it to the Nigerian Bar Association (NBA) and was not replaced as at the time the Notice of Appeal was filed. The case of Mega Progressive Peoples Party v. INEC & 3 Ors SC/665/2015, judgment which was delivered on 12/10/2015 was cited and relied on for the statement that Section 10 of the Legal Practitioners Rules of Professional Conduct (LPRPC) is directory and not mandatory in nature and that failure to affix the Nigerian Bar Association Stamp cannot invalidate process filed in Court of Law. The Court is urged to resolve the objection in favour of the Appellant.
Now, it is not in dispute by the parties to the objection that the Notice of Appeal filed by the Appellant (referred to earlier) was duly and properly signed by a known Legal practitioner who under the provisions of Sections 2 and 24 of the Legal Practitioners Act, is entitled to practice as such and so qualify and competent to sign and file a legal process
in a Court of law in Nigeria. Neither the name, the person nor the signature of said Legal Practitioner on the Notice of Appeal was in any doubt or dispute. The exercise of the constitutionally guaranteed right of appeal to this Court under Sections 241(1), 242(1), 244, 245(1) and 246(1) of the Constitution (as altered) is initiated by the filing of a Notice of Appeal to the Court in accordance with the provisions of the Court of Appeal Act (CAA) enacted by the National Assembly and the Court of Appeal Rules, made by the President of the Court of Appeal under the power vested by the provisions of Section 248 of the Constitution to make rules regulating the practice and procedure of the Court.
Section 24 of the Court of Appeal Act provides that where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by Rules of Court. The Rules of the Court, 2011 provide in Order 6, Rule 2(4) that:
“The Notice of Appeal shall be signed by the Appellant or his Legal Representative”
?As subsidiary legislations made pursuant to the provisions of Section 248 of the Constitution as well
as Section 8(2) of the Court of Appeal Act, the Rules draw and have the same force and effect with the foundational provisions of the ground norm and substantive law enacted by the National Assembly. See Akembi v. Alao (1989) 5 SC, 1, (1989) ALC NLR, 424, Fawehinmi v. NBA (No2) (1989) – 20 NSCC – (Pt. II) 43 at 69, (1989) 4 SC (Pt. 1) 63.
?The Notice of Appeal filed by the Appellant here, complies fully with the provisions of both the Court of Appeal Act and the Rules of Court made pursuant, directly, to the provisions of the Constitution. The provisions of the Rules of Professional Conduct for Legal Practitioners (RPCLP) are made to regulate the conduct of Legal Practitioners in the practice of the legal profession and not to regulate the practices and procedures of the Courts of Law in Nigeria, which under the Constitution, have the requisite vires to enact rules of practice and procedures to govern and regulate matters that come before them. The Rules of Courts are specific provisions made for matters that come before the Courts while the RPCLP are general rules meant to regulate the general conduct expected of Legal Practitioners in carrying out their
professional duties and practice of the legal profession. It appears to me that the RPCLP do not take precedence over and above the Court of Appeal Act and Rules in respect of practice and procedure in the filing of processes in the Court of Appeal and cannot be elevated to the pedestal of rendering a process which complies with the Court of Appeal Act and Court of Appeal Rules and filed in the Court, invalid or incompetent.
Rule 10(1), (2) and (3) of the RPCLP relied on for the objection here, provide thus:
10(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department of Ministry or any corporation shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
?(3) If, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule (2) of this rule, and in
any of the capacities mentioned in sub rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed.
Undoubtedly, “any similar document” in 10(3) above, I agree with the learned Silk for the 1st Respondent, admits of a Notice of Appeal which is a legal document and process required to be signed by a legal practitioner as defined under Section 24 of the Legal Practitioners’ Act and by the authority of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) p. 521, cited by him. As can easily be observed, there is a sanction in Rule 10 (3) for failure to comply or non compliance with the Rule, which is that; “The document so signed or filed shall be deemed not to have been properly signed or filed.” Plainly and practically, the consequence of failure by a legal practitioner who signed and filed a legal document or process in a Court of law, without the stamp and seal approved by the NBA, going by the clear words of Rule 10(3), is that the process was not properly filed in Court and so the Court cannot properly take cognizance of or act on it. If it is an initiating process, as in the case of the Notice of Appeal to this Court which is the
subject of the objection here, then such a document or process is deemed not properly filed in the Court in order to properly and effectively invoke the requisite jurisdiction of the Court over an appeal since the Court cannot properly take cognizance of it or act on it. The inescapable effect is that a process or document filed in Court which the Court cannot properly act on as filed, is a process which is not validly filed in the Court for the purposes of proper judicial proceedings of that Court and so is an incompetent process that affects the competence of the Court to adjudicate over it. This seems to fly, as I have demonstrated earlier, in the face of the requirements of the provisions of the Court of Appeal Act and Court of Appeal Rules for the filing of a valid Notice of Appeal, which are not subject or subservient to the RPCLP.
Luckily, the Learned Senior Counsel for the parties have made available to the Court, while in the process of preparing this judgment, the reasons for the decision by the Supreme Court in the appeal No: SC/722/2015, Senator Yaki & 1 Or (Rtd.) v. Senator Bagudu & 2 Ors, delivered on the date of hearing this Appeal. The
relevant portion of the reasons for the purpose of the objection are on the 2nd Respondent’s Cross-Appeal therein, where the provisions of Rules 10(1), (2) and (3) of the RPCLP were considered by the apex Court, The reasons for the lead judgment delivered by Nwali Sylvester Ngwuta, JSC, are concise and precise and it is expedient to set them out in full. Here they are:
“2nd Respondent’s Cross-Appeal:
In his cross-appeal, the 2nd Respondent raised this single issue for resolution:
“Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent…”
The issue calls for application of Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007 effective from 1st April, 2015.
The 2nd Respondent placed reliance on said rule hereunder reproduced:
“Rule 10(1) A lawyer acting in his capacity as a legal officer or adviser of any governmental department of Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal
and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule “legal documents” shall include pleadings, affidavits’ depositions’ applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
(3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub-rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly sighed or filed.”
The documents in question here purportedly signed and filed by a lawyer in his capacity as legal practitioner did not have on it “a seal and stamp approved by the Nigerian Bar Association.” The process so signed and filed is a legal process within the intendment of Rule 10(2) of the Rules.
What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules?
?The answer is as provided in Rule 10(3) to the effect that “…the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed
is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) SC 521 cited by the learned Silk for 2nd Respondent/Cross-Appellant. The document, in terms of the Rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd Respondent assumed.
It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court.
In such cases, the filing of the process can be regularized by extension of time and a deeming order. In the case at hand the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the Court cannot take cognizance of a document not properly filed and the filing not regularised.
?I
do not subscribe to the Respondent’s view that the rule does not provide any punishment for its breach. That the legal document is deemed not properly signed and filed is enough sanction for the breach of the rule. There is also the argument that the rule constitutes a curtailment of the right of appeal under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
No right, including the right of appeal, is absolute. A pre-action notice has been held to be a condition for the exercise of the right to bring the action and not as abridgement of that right. See Anambra State Government & Ors v. Marcel & Ors (1996) 9 NWLR (213) 115.
It is for the above that we allowed the cross-appeal and set aside the judgment of the Court of Appeal.
?Onnoghen, JSC who presided over the full Court in the appeal, in his contribution, had inter alia said:
“The next question has to do with the legal effect of non compliance as stated in sub rule (3) of Rule 10 inter alia “…the document so signed or filed shall be deemed not to have been properly signed or filed.” It must be borne in mind that the provision of the Rules of Professional Conduct, 2007 are no
substitute for substantive laws being a subsidiary legislation/enactment.
What sub rule (3) supra is saying is that such non compliance renders the document so signed or filed voidable that is why it is said the document is “deemed not to have been properly signed or filed.” In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal. That is what My Lord, NGWUTA, JSC meant by saying that the situation is like filing a document out of time which can be subsequently remedied. However, the consequence of the said non compliance renders the document so filed voidable not void which is subject to regularization upon application even orally in the open court at any stage in the proceedings involved, even on appeal.”
Rhodes-Vivour, Ariwoola and Ogunbiyi, JJSC, in their respective contributions, stated that the effect of failure to affix the NBA approved stamp and seal on a process signed and filed in Court by a legal practitioner is to render the process voidable and not void. Odili JSC, who was also on the panel, had opined inter alia, that:
“A Notice of Appeal is the
originating process at an appellate court and the Notice of Appeal is clearly within the ambit of legal documents described in Rule 10(2) as “any similar documents’ which must be signed, stamped and sealed. Therefore a Notice of Appeal not found with these components is an incompetent Notice of Appeal depriving the court of the jurisdiction to determine the appeal on the merit. This within what was provided under the Legal Practitioners Act, Laws of the Federation 2004 (as amended) and the Rules of Professional conduct, Rule 10(3). In this regard the case of FBN Plc v. Maiwada & Ors (2013) 5 NWLR (Pt. 1348) 444 per Fabiyi JSC at 488 is helpful. He stated as follows, “Legal Practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of the profession.”
As to infringing the right of a litigant to appeal where the error or lapse of his Counsel to stamp and affix his seal on a legal document it must be stated that the rights of a litigant who sought a legal practitioner is not open ended or rights outside the Laws of Practice and procedure or rules of court.
It is in keeping with
these policy statements of this court that there is the need, an urgent one at that to protect the entire public from fakes parading themselves as legal practitioners and also the safe guarding of the profession itself which has been regulated and it is not for an individual or lawyer or litigant to decide which regulation is an offhand directive that could be complied with or not. See Labaiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Oloruntoba-Oju v. Abdul Raheem & Ors (2009) LPELR 2596.
Therefore any non-compliance with the Rule 10(2) of RPC, with the circular of the Chief Justice of Nigeria as a reiteration is visited with the sanction that the process is without competence. It cannot be excused by talking of the inalienable right of a litigant to appeal as that right has to be exercised within the necessary prescribed Rules of legal practice.”
?It is clear from the lead reasons in the above appeal before the apex Court that a document or process signed and filed by a legal practitioner without the approved NBA stamp and seal affixed thereon would be in breach of the provisions of Rule 10(1) and (2) and liable to the sanction set out in Rule 10(3). The
legal Consequence of the sanction as stated above is that the document or process is rendered voidable. Simply put, a voidable process is a process which does not comply fully with the requirements of the relevant rules or regulations which set out the form and contents which the process should be in and contain for its proper filing in the court for the purpose of judicial proceedings.
Ordinarily, failure to fulfill or to fully comply with requirements of the rules or regulations in filing a Court process is treated as a mere irregularity which would render the process legally voidable and capable of being regularized or made to meet the requirements by the party who filed it. That is usually done by the filing of a fresh process which fully complies with or satisfy the requirements of the relevant rules or regulations or, as the case may be, by application for extension or enlargement of time where time was limited, for the party to regularize the said process.
?The apex court in the above appeal was dealing with a Notice of Appeal, just as in the present appeal and my understanding of the lead reasons which are supported by the contributions, is that a party
can apply for extension of time to affix the stamp and seal approved by the NBA to a Notice of Appeal which was signed and filed by a legal practitioner without it. However, the point was not canvassed before the apex Court and it was not made by it on whether the application for extension of time to affix the approved stamp and seal could be made after the expiration of the time specifically stipulated and limited by the law for the filing of the said Notice of Appeal that was not properly signed and filed. Earlier, the apex Court in a number of cases which include ANPP v. Goni (2012) 7 NWLR (1298) 147, Oke v. Mimiko (2013) ALL FWLR (693) 1853, ACN v. INEC (2013) 13 NWLR (1370) 166 has laid down and restated the law that no Court has the power and authority to extend any of the periods of time stipulated and limited by the Constitution and the Electoral Act in election matters for which time is of crucial essence. Because my view of the application of the RPCLP to the filing of processes which comply fully with the Court of Appeal Act and Court of Appeal Rules happens to be in line with the position of the apex in the above appeal, that the Notice of Appeal
in question was not void or incompetent and can be regularized by an application of time to affix the stamp and seal, I am inclined to hold the view that the application is not one which is meant to file another Notice of Appeal out of time, but to simply regularize the one which was filed within the time limited by the law. In that premise, it is one which the court has the competence to properly consider and grant, as may be appropriate in the circumstances of the case. Onnoghen, JSC had given the go ahead in the above appeal when he said:
“However, the consequence of the said non-compliance renders the document so filed voidable, not void which is subject to regularization upon application, even orally in open Court at any stage in the proceedings involved, even on appeal.”
?The Learned Silk for the Appellant has made the oral application at the hearing of the appeal in open Court, for the missing NBA approved stamp and seal to be affixed to the Notice of Appeal filed on the 2/10/2015. The application is supported by the above statement by the erudite Law-Lord of the apex Court and has taken the wind out of the sail of the objection by his learned brother Silk
for the 1st Respondent that it has to be by way of notice of motion supported by an affidavit and that it is out of time. The Appellant can properly make the oral application and from the peculiar facts disclosed by the Learned Senior Counsel who signed and filed the Notice of Appeal on the 2/10/2015 in the affidavit of fact and further affidavit of fact filed on the 6th and 13th of November, 2015, respectively, which we find competent as affidavits duly sworn to and properly filed in Court in relation to facts which are relevant for the determination of the objection, we find it expedient to grant same.
The grant of the oral application for the missing NBA approved stamp and seal to be affixed to the Appellant’s Notice of Appeal filed on the 2/10/2015 which appears at pp 2047-2058 of the Record of Appeal, means that the objection by the 1st Respondent to its competence on the Ground only that the stamp and seal are missing, is wanting in merit. It is overruled and dismissed, accordingly.
?I now turn to the motion filed by the Learned Silk for the 2nd Respondent on 30/10/2015 challenging the competence of some particulars of some grounds and some grounds of the
Appellant’s Notice of Appeal; the motion is supported by a four (4) paragraphs affidavit and written address. The Appellant had filed a counter-affidavit on the 10/11/2015 along with a written address in opposition to the motion. The learned senior Counsel has in the written address said that because the 2nd Respondent has taken steps after becoming aware of irregularities complained of, it had waived them, citing Order 2 Rule 5(1) of the Rules of Court. All that needs be said is that whether or not there was a challenge by any of the Respondents to the grounds on the Appellant’s Notice of Appeal, the law is settled that the Court can only countenance valid and competent grounds of an appeal which are derivable from the ratio decidendi of a decision of a lower Court or Tribunal. The challenge by the 2nd Respondent to some grounds and particulars of the Notice of Appeal is not predicated on non-compliance with the Rules of the Court which Order 2 Rule 5(1) provides for, but essentially, on established judicial principles of law which both learned senior Counsel for the parties relied on in arguing the motion in their respective written addresses. After a calm
perusal of the grounds of the challenge, the affidavits and addresses of Counsel, alongside the grounds and particulars contained on the Notice of Appeal, my findings are that:
(1) That the particulars (ii), (vi), (vii), (ix), (x) and (xi) of ground 2 are borne out by the record of appeal and so competent. Even if they were not, the other balance or the particulars of the ground are enough and capable of sustaining the ground. Furthermore, the law has now been settled for some time, that a Ground of Appeal which clearly sets out the real complaint or grievance against the decision of a Lower Court is competent even without any particulars set out therefor. See Aderounmu v. Olowu (2000) 4 NWLR (652) 253, Odinigi v. Oyeleke (01) 25c, 194, UBA v. Achoru (1990) 21 WSCC (Pt. 3) 256. The objection to the ground 2 is lacking in merit and is overruled.
(2) Ground 4 of the appeal is as follows:
The learned Justice of the lower Tribunal erred in law when they placed heavy reliance on the evidence of the 1st Respondent’s witnesses, RW1 and RW2, in their judgement by refusing to expunge same from its record and this error has occasioned a miscarriage of justice.
?The
particulars set out under the ground are to the effect that the evidence of RW1 & RW2 was not frontloaded and that the Tribunal had found that to be an abuse of its process but did not discountenance it in the judgment appealed against. The Appellant, as petitioner, had raised the issue before the Tribunal and in a ruling delivered on 5/8/2015, which appears at (p 1986-1991 of the Record of Appeal, had held inter alia, that “In the interest of justice and fair hearing this Tribunal has decided not to be too stringent with its decision and so we will allow the evidence of this witness PW II.”
The purpose of Ground 4 above along with the particulars which ossify it, is clearly to challenge the above decision by the Tribunal to, allow the evidence of RWII, which was not frontloaded. The Learned Silk for the 2nd Respondent is right that the decision was an interlocutory one and an appeal against same should have been filed within the time limited for it which had since expired, It is too late for the Appellant to do so now by way of ground 4 of the Notice of Appeal for it is out of time and so incompetent. It is struck out along with issue 4 distilled from it
and set out in the Appellant brief.
(3) Ground 5 has precisely set out what the grievance is against the decision by the Tribunal and even without any particulars, sufficient and clear notice is given therein about it to the 2nd Respondent. The particulars (ii), (iii) and (iv) do not subtract from the complaint in the ground which particular (i) supports. There is no substance in the objection to the ground and it is dismissed.
(4) Grounds 6 and 7 particulars (ii) and (iv) of the grounds respectively, come from the record of the evidence of RW3. Even without the said particulars, the complaints in the two (2) grounds are quite unambiguous and sufficiently expressed to give the 2nd Respondent reasonable and adequate notice of what they are talking about against the judgement of the Tribunal. The objection to the grounds, in that premise, is bereft of merit and is dismissed.
?(5) Ground 13 is said not to synchronise with the particulars or agree with the main complaint therein. The simple complaint in the ground is that the Tribunal erred in law to have upheld the return of the 1st Respondent and the particulars, patently, provided the basis of the complaint. The
ground is a competent ground and so the objection to it fails for want of substance. It is dismissed.
Having dealt with preliminaries, I now consider the issues raised by the parties to the appeal.
On the Appellant’s Issues, it would be remembered that I have found issue 4 to have been distilled from an incompetent ground 4 and so struck it out earlier. Issues 1, 2, 3 and 5 are the ones left for consideration in the Appellant’s brief. As a reminder, the issues are as follows:
1. Whether the Tribunal did not misplace the burden and standard of proof on the pleadings by placing it on the Appellant instead of the Respondents?
2. Whether the Tribunal’s consideration of the weight of evidence on the holding of the 2nd Respondent’s Primary was not perverse?
3. Whether the 1st Respondent proved that he properly joined the 2nd Respondent to be entitled to contest the Governorship Election of 11th April,2015?
5. Whether it was proper for the Tribunal to have relied on the provision of Section 140(2) of the Electoral Act, 2010 (as amended) to dismiss the Petition?
?Since these issues are easily traceable and derivable from the grounds of the appeal, I intend to consider them in
the determination of the appeal for they represent the complaints the Appellant has against the judgement of the Tribunal. These issues have the same substance with the issues raised from the Appellant’s grounds of appeal, by the 1st and 2nd Respondents and the issues 1 and 3 of the 3rd Respondent.
The issues 1, 2 and 3 of the Appellant can conveniently be taken together because they all deal with the issue of proof and evaluation of evidence.
Appellant’s Submissions:
After setting out authorities on the distinction between the legal and evidential burden of proof and what determines either, it was submitted that the Appellant only made a negative assertion that the 2nd Respondent did not conduct any primary election for the nomination of the 1st Respondent while the 1st and 2nd Respondents asserted positively that the said primary election was conducted and so they had the burden of proof on the state of the pleadings to prove their assertion. It was argued that the Appellant had no duty to prove the negative assertion made in the pleading but that the Tribunal misplaced such burden on the Appellant which occasioned miscarriage of justice to, him. The cases of
Odom v. PDP (2015) 6 NWLR (1456) 527 at 560, Olaniyan v. Oyewole (2011) 14 NWLR (1268) 445 at 488 were relied on and it was further argued that the Tribunal was wrong to say that there was paucity of facts from Appellant who had elicited evidence under Cross examination of the witnesses of the Respondent, particularly RW3 to support his case, and that he had to succeed on the strength of his own case. Reference was made to the case of Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (1181) 338 at 351 and it was submitted that the 2nd Respondent had failed to discharge the burden of proof imposed on it by law to adduce evidence that it conducted the primary election for the nomination of the 1st Respondent, reliance placed on Amgbare v. Sylva (2009) 1 NWLR (1121) 1 at 5a-74 and Saraki v. Min. for Chieftaincy Affairs, Kaduna State (2014) LPELR 23604 (CA), among others.
?The Tribunal, it was contended, ought to have held that the Appellant had proved the disqualification of the 1st Respondent and on the authority of Onobruhere v. Esegine (1986) 1 NWLR (19) 799 at 807 inter alia, the Court is urged to allow the appeal as a result of the misplacement of the burden of
proof by the Tribunal on the Appellant which occasioned him miscarriage of justice.
On Issue 2, it was contended that the Tribunal’s finding on the holding of the 2nd Respondent primary election was against the evidence adduced by the Appellant that no such primary election was conducted and that it was perverse, liable to be set aside by the Court, citing Ogbe v. Asade (2009) 18 NWLR (1172) 106 at 133. It was maintained that the evidence of PW3, Exhibit P11 and the admission of RW3 under Cross examination was proof of the Appellant’s case but the Tribunal wrongly refused to attach any weight or probative value to it. According to the learned Counsel in the Appellant’s brief, the decision of the Tribunal on the holding of the 2nd Respondent’s primary election was perverse because:
a. There was sufficient evidence to show that primaries did not hold either on the 5th of December, 2014 or 10th and 11th of December, 2014.
b. The lower Tribunal made findings that the chronology of events as told by the Respondents is incredible and improbable.
?c. The admission of RW3 of RW3 during cross-examination is an admission against interest which is the best form of evidence.
d. Exhibit P11 as a document under Section 258 of the Evidence Act 2011 a documentary evidence which speaks for itself and does not need any oral evidence to vary, add to or alter it.
e. The failure of the Respondents to adduce sufficient evidence in support of their case that they help primaries casts only a minimal proof on the Appellant since burden of proof is not static.
f. Evidence of PW3 was direct and uncontroverted.
g. After making the findings that there was a viva voce admission by RW3 during cross-examination, the decision of the lower Tribunal in upholding the 1st Respondent’s Election is perverse.
?Passages of the judgment appealed against and some judicial authorities on admission and admission against interest were cited in demonstration of the above items. It was then said that there are certain exceptions to the general principle that a plaintiff should succeed on the strength of his case and not on the weakness of the defence which include where the case of the defence supports that of the plaintiff as was the situation in the Appellant’s case. The case of Osigwe v. Unipetrol (2005) 5 NWLR (918) 261 at 284. On the factors that determine the weight
of evidence was cited and it was argued that Exhibit P11 had met all of them and should have been ascribed due weight as it speaks for itself and could not be contradicted by oral evidence. Furthermore, that by the failure to call evidence, an adverse party only has onus of minimal proof and that there was evidence through Exhibit R8 that the 2nd Respondent gave only five (5) days new notice to the 3rd Respondent for its primary election contrary to the 21 days provided for by the Electoral Act. The unreported decisions of the Court in appeals No. CA/A/EPT/640/2011; Usman Atai v. Dangana, delivered on 13/12/2011 and CA/A/EPT/492/2015, Labour Party v. Wike, delivered on 29/9/2015 were referred to and the Court is urged to hold that because there was sufficient evidence that the 2nd Respondent did not hold or conduct primary election to nominate the 1st Respondent for election in accordance with the law, the 1st Respondent was not qualified to contest the election conducted by the 3rd Respondent on the 11/4/2015 for the office of the Governor of Benue State.
?The submissions on Issues 3 are primarily on the same qualification of the 1st Respondent to contest the
election in question and it was said that the evidence before the Tribunal showed that he resigned from the PDP, joined the 2nd Respondent and was granted waiver by it, all on the same day which the Tribunal found incredible, but still relied on it in its judgement.
The Tribunal was said to have failed to properly evaluate all the material evidence adduced before it by the Appellant and so came to the wrong conclusion in its judgement. The Court is urged to resolve the issue in favour of the Appellant.
The 1st Respondent’s Issues 1 and 2 cover the above issues of the Appellant. On Issue 1, Section 133 of the Evidence Act, 2011 was set out by the learned Counsel along with passages in the cases of Okoye v. Nwankwo (2014) 15 NWLR (1429) 93 at 126 and Buhari v. Obasanjo (2005) 13 NWLR (941) 1 at 122 and it was submitted that in law, the Appellant owed the duty to prove the assertions made in his pleadings on the indirect primary election that was not relied on by the 2nd Respondent to sponsor the 1st Respondent for the election. That 2nd Respondent used consensus primary in line with the proviso to Section 87(6) of the Electoral Act to nominate the 1st Respondent
for the election. Paragraphs 7-12 of the 2nd Respondent’s further amended Reply and the evidence of RW1, RW2 and RW3 were referred to in support of the position and it was argued that the Appellant in his Reply to the 2nd Respondent’s Reply to the petition had made assertions and allegations bordering on criminal wrong doing that require proof beyond reasonable doubt under Section 135(1) of the Evidence Act. Learned Counsel then contended that Exhibit P11 was inadmissible because it was not tendered through the maker, relying on Obembe v. Ekele (2001) 10 NWLR (722) 677 at 690 and that the Tribunal was right not to attach any weight to it in its judgement. He said by the state of the pleadings, the burden of proof was on the Appellant to prove the wrong doing he asserted but failed to do so and the Court is urged to resolve the issue against the Appellant.
?On Issue 2, it was submitted that the judgment of the Tribunal was not perverse as there was evidence by Exhibit R8 that there was the relevant primary for the nomination of the 1st Respondent and that the pronouncement by the Tribunal that the chronology of events leading to the 1st respondent nomination was
incredible was at best an orbiter which cannot be latched upon to overturn its decision. The cases of: APC v. PDP (2015) LPELR 24587 and Ede v. Aneke (1992) 5 NWLR (424) p. 428 at 435 were referred to and in further argument, Counsel said that Appellant had failed to adduce credible evidence to prove his case as Exhibit P11 was documentary hearsay while PW3 did have personal knowledge of what he testified on and so his evidence was not direct but also hearsay, making reference to the case of: Yusuf v. Obasanjo (2005) 18 NWLR (956) 96 at 184. The court is urged to resolve the issue against the appellant.
?Only issue 2 of the 2nd Respondent is relevant for consideration in the determination of the Appellant’s issues 1, 2 and 3 since the Appellant’s issue 4 which is the same as 2nd Respondent’s issue 3 has been struck out. The submissions on issue 2 are similar to the ones made in 1st Respondent’s brief on issue 1 but it was added that in election petitions, the law is settled, that a party/petitioner who seeks to challenge an election has the duty to prove the grounds on which he relies in the petition. Among other cases, Chime v. Ezea (2009) All FWLR (470) 659 at
725 and CPC v. INEC (2012) ALL FWLR (617) 605 at 648 were cited and it was further argued that since the reliefs sought by the Appellant were declaratory, he had the onus of proving his entitlement to them by adducing evidence as they cannot be granted even on admission by the Respondents, on the authority of Aji v. C.B.D.A. (2015) ALL FWLR (784) 148 at 560. The case of Odom v. PDP (supra) was said not to be applicable to the facts of the Appellant’s case and that the Appellant did not testify thereby abandoning the pleadings challenging the 2nd Respondent’s primary election of 11/12/2014 which was proved by evidence in R8 and other Exhibits. The Tribunal was said to have properly evaluated the evidence adduced by the parties to the petition before it in coming to the conclusion that the Appellant did not prove his petition. Counsel also said that the Appellant failed to plead facts on the application of Section 85 of the Electoral Act for the Tribunal to have dealt with it and so all arguments on the Section go to no issue. Ogukwu v. Yar’Adua (2009) ALL FWLR (482) 1065 at 1115 and Chabasanga v. Anwasi (2010) ALL FWLR (528) 839 were referred to. The same
argument was made in respect of INEC Regulations for conduct of political primaries said to have been mentioned at paragraph 7.1.7 of Appellants brief and Section 86(1) of the Electoral Act said to be a new or fresh issue raised without leave of court. In the alternative, it was contended that the Section imposes a duty on 3rd Respondent and not the other Respondents. Exhibit P11 was also said to be secondary evidence under Section 87(b) of the Evidence Act and as held in INEC v. A.C. (2009) ALL FWLR (480) 732 at 799-780. In addition, that Exhibit P11 was not explained by PW3 and so was dumped on the Tribunal.
In respect of Appellant’s issue 3 it was submitted that the 1st Respondent via Exhibits R1, R4, R4A and R5 had shown that he had left the PDP and become a member of the 2nd Respondent before contesting the primary and general elections. The Court is urged to resolve the issue in Respondent’s favour and against the Appellant.
The 3rd Respondent’s Issue 1 encompasses the Appellant’s Issues 1, 2 and 3 and substantially similar arguments as those of the 1st and 2nd Respondents, were made on it in the 3rd Respondent’s brief and some other judicial authorities
were referred on the different points made therein. In addition, it was submitted that the Appellant had admitted the 1st Respondent was a candidate at the election in question in their paragraph 4 of the petition and tendered his nomination forms submitted by the 2nd to the 3rd Respondent as Exhibit 5 in evidence, thereby raising the presumption that the nomination was valid under Sections 167(c) and 168(1) of the Evidence Act, 2011 which he had the duty to rebut, but failed to do so. The learned senior Counsel for the 3rd Respondent had contended that the 2nd Respondent gave adequate notice of its primary election as shown in Exhibit P7 tendered by the Appellant to the 3rd Respondent and the primary conducted on 11/12/2015 was not a fresh but re-scheduled one that was postponed from the 10/12/2015. The Court is urged to resolve the issue in favour of the 3rd Respondent.
In the Appellant’s Reply to the 1st Respondent’s brief, it was maintained that the 1st and 2nd Respondents had the onus of proving that the 2nd Respondent conducted the primary election recognized by the Electoral Act and they failed to do so. Again Odom v. PDP was referred to and Yusuf v.
Obasanjo is said not to be an authority on the Evidence Act, 2011 as it was decided on the “Act of 1945”. In the reply to 2nd Respondent’s brief, it was said that the case of: Aji v. C.B.D.A. (supra) not being an election matter, is not apposite in the appeal and C.P.C. v. INEC (supra) is inapplicable because the burden of proof of qualification on the person who made positive assertion, did not arise in it. Furthermore, relying on Ayoola v. Yahu (2005) 7 NWLR (923) 122 at 139, it was argued that it is not in all cases where declaratory reliefs should succeed on the strength of a party case. It was also the case of the Appellant that he did not need to plead statutory provisions under Section 122(2)(a) of the Evidence Act in the Appellant’s reply to the 3rd Respondent’s brief similar submissions to the ones in respecting the 1st and 2nd respondents briefs were made and the court is once again, urged to resolve at the issues in favour of the Appellant.
By the provisions of the Evidence Act 2011 generally, the burden of proof in a suit or judicial proceedings is placed and lies on the person or party who would fail if no evidence at all were given on either side
in the suit or proceedings. See Section 132 of the Act. Then Section 133(1) and (2) of the Act provide that:
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) if the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
Section 131 shows what the burden of proof is in respect of any claim of a legal right or liability made before a court of law when it provides thus:
131(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on
that person.
It is from the community reading of the above provisions of the Act, which are a repetition of similar provisions of earlier Acts, that the courts over the years, had established what have become known as the two (2) classes or types of burden of proof imposed by the law on parties to a civil suit or judicial proceedings, now including election petitions proceedings. The two (2) categories of the burden of proof are:
(a) Legal burden and
(b) Evidential burden
The legal burden is the duty of introducing evidence by a party who make assertions of rights based on the existence or non-existence of certain facts in his pleadings at the commencement of a case and who would fail if no evidence at all was introduced in the matter, by the state of the parties’ pleadings. This is a burden and duty imposed by law on a party and it remains fixed on the party throughout the case to prove his case, otherwise he would fail in the claims and the court is entitled to dismiss same. See Jack v. Whyte (2001) 3 SC, 21, Imana v. Robinson (1979) 3-4 SC 1.
?Evidential burden on its part, imports that where a given allegation or assertion, whether affirmative, positive or
negative, forms an essential or vital part of a party’s case, the onus or duty to prove the allegation or assertion, is and rests on the party. The party may be the plaintiff or the defendant in a case and the burden is not static or fixed permanently in the case but generally regulated by the state of the pleadings at all stages of a case. This kind of burden is somehow complimentary to the legal burden imposed by the above provisions of the Evidence Act in the sense that it shifts to a party to prove a particular fact, asserted or alleged, whether in the positive, affirmative or negative. In Chukwuka v. Nduka (2008) LPELR-3985 (CA), Allagoa, JCA (later JSC) had stated that:
“In Alliance for Democracy v. Fayose (2005) 10 NWLR (932) P. 154 at 188 it was held that an assertion can be positive or negative. In Tukur v. Governor of Gongola State (1988) 1 NSCC Vol. 19 Page 30 at 38 it was the Appellant that asserted the negative and yet the court held that the onus lay on him to prove his negative assertion.”
His lordship also referred to the case of: Nnaji v. Agbo 2 EPR, 867 as illustrating the principle. See in addition, Alade v. Aborishade (1960) SCNLR 398,
Ochonma v. Lenosi (1965) NMLR, 321 at 323, Motanya v. Elinwa (1994) 7 NWLR (356) 252, (1994) 7-8 SCNJ (pt. III) 615 at 621. This is what is commonly known as burden of proof on pleadings because it is based on the state of the pleadings of the parties and the scale on which the evidence adduced at any stage of the proceedings preponderates. Where at any stage of the proceedings and state of the evidence adduced, a party would fail or lose if no further evidence was given or adduced, the burden is said to be on that party and it would continue to oscillate between the parties until the matter is finally determined in favour of a party to whose side of the imaginary scale of justice, on which the entire evidence adduced by the parties is placed and weighed by the court, tilts or finally preponderates due to its heavier height of probative value.
In election petitions, which is a specie of civil proceedings, the initial legal burden of proving, by way of introduction of evidence, the grounds upon which an election conducted by the INEC, was questioned or challenged by a petitioner, is and rests squarely, on him because he, it is, who approached an Election
Petitions Tribunal and desired that judgment be entered for him or in his favour, based on the existence of the facts upon which the grounds of the petition are grounded. It is the petitioner, who will fail or lose if no evidence at all was given or adduced before the Tribunal in respect of the grounds upon which the petition is premised. He therefore owes and bears the legal burden of proof of the facts he alleged or asserted as constituting the grounds upon which he questioned the election and as shown above, it is a burden that is fixed and remains static on him throughout the trial of the petition until such a stage that it was satisfactorily discharged in accordance with the requirements of the evidence law. The satisfactory discharge of this legal burden by a petitioner is what is generally meant by the principle of law of evidence laid down in many cases that he is, to succeed on the strength of his case and not entirely on the weakness of the defense from the Respondents to the petition. See: Okoreaffia v. Agwu (200) LPELR – 2008 (A), Agballah v. Nnamani (2005) ALL FWLR (245) 1052, Ogo v. Rasaki (2009) LPELR – 470 4(CA), Rimi v. Maradun (2008) LPELR –
8441 (CA), CPC v. INEC (supra), Iyagba v. Sekibo (2008) LPELR – 4346 (CA)
The principle is also enforced by the rebuttable presumption of the validity of the election as declared and returned by INEC, which a petitioner has the legal burden or duty to rebut by evidence to be adduced by him in the petition questioning the said election. See: Agballah v. Nnamani (supra), Agballah v. Chime (2009) 1 NWLR (1122) 373.
In addition, the law is also settled that declaratory reliefs are not granted by a court or tribunal of law either on the basis of admission, or weakness or even absence of a defence from the adverse party, without evidence adduced to establish entitlement to the reliefs by the party seeking them. See: Onu v. Agu (1996) 5 SCNJ, 74 at 87, Ala v. Okoro (1991) 7 NWLR (203) 260 at 282, Ogungimo v. Ademolu (1995) 4 (389) 254 at 269, Dabup v. Kolo (1993) 9 NWLR (317) 254.
?In all election petitions questioning the conduct of the election or the declaration and return of the winner, declaratory reliefs are sought from the Election Petitions Tribunals premised on the facts alleged or asserted forming the arrow heads of the grounds of the petition. Such reliefs
are not granted merely because the Respondents did not deny effectively, the facts of the petition or even admitted them in their pleadings. The petitioner has the legal burden to prove his entitlement to them by adducing sufficient and credible evidence which would satisfy the tribunal that he is entitled in law, to the grant of the declarations sought. Even without denial by respondent to the petition, a petitioner owes the legal burden of proof in respect of the declaratory reliefs sought in his petition before they could properly be granted by the tribunal. In that regard, he is to and can only succeed on the strength of his own evidence or case in order to be entitled to the reliefs he claims in the petition. See: Woluchem v. Gudi (1981) Pt.5 SC, p.291, Bello v. Iweka (1981) Pt.1 SC, P.101. Adelaja v. Famoiki (1990) 2 NWLR (Pt. 131) p. 137, Alechendu v. Oshoke (2002) 9 NWLR (Pt. 773) p. 521, Ojukwu v. Yar’adua (supra).
?The complaint of the Appellant under this issue is that the Tribunal had misplaced the burden of proof on him when it said that he must win his case on the strength of his own case and not on the weakness of the Respondents’ cases or
defence, was on the assertion made that the 2nd Respondent did not conduct a primary election at all for the nomination of the 1st Respondent as a candidate to contest the election in question. The Appellant calls and labels the said assertion or allegation, as a negative assertion which he has no duty to prove under the law. However, as demonstrated earlier, an assertion or allegation, can be either negative or positive, but once made by a party in a case, he owes and bears the legal burden of proof, which is fixed and static, to prove same if he expects a court or tribunal to, on its basis, make a declaration of a right he claims in the case in his favour. It is a clear misconception, with due respect to Counsel, to argue that the Respondents who had denied the assertion made by the petitioner as the vital and crucial point and fulcrum of his case, had the legal burden of proof of such an allegation against them merely on the basis of their denial of the assertion or allegation. In these premises, the Tribunal was on the firm terrain of the law that the duty or onus of proof of the assertion or allegation made in the petition that the 2nd Respondent did not
conduct primary election at all for the nomination of the 1st Respondent as, a candidate for the election in question, was imposed by law on the Appellant and he had to rely and succeed on the strength of the evidence he adduced either through his own witnesses or elicited under-cross examination of the Respondents witnesses, as permitted by law. He cannot fold his arms and expect that the Tribunal would simply grant the reliefs he sought on the misconceived notion that the Respondent were to prove his petition for him even after effectively denying the facts upon which it was premised in their own pleadings. That would mean the Respondents were to prove and defend the pleadings of the parties to the petition at the same time for the Tribunal to grant the reliefs sought by the Appellant in the petition. That is incomprehensible in law that treats parties equally before it. The tribunal by the findings, or pronouncement complained of by the Appellant under this issue, simply and rightly restated the established principle of law as it relates to the burden of proof in election petitions, in particular, and civil matters or cases, generally. Tobi, JSC, in Buhari
v. INEC (supra) had reaffirmed the law that:
“A petitioner who files a petition under Section 145(1) of the Electoral Act has the burden to prove the ground or grounds. This is because he is the party alleging the grounds and he has the duty to prove the affirmative. He is the party who will lose if no evidence is given on the grounds.”
Section 145(1) of the Electoral Act, 2006 mentioned by the erudite professor and Law Lord is now Section 138(1) of the 2010 Act (as amended). The burden of proof was in the circumstances, placed appropriately and properly where the evidence law places it and so the issue of its misplacement by the Tribunal as canvassed by the Appellant did not arise. Perhaps, I should mention that the law is firmly established now that in cases where the burden of proof was shown to have been misplaced by a trial Court or tribunal which resulted in a miscarriage of justice on the part of the party on whom it was misplaced, the decision based on the misplaced burden, would/should not be allowed to stand on appeal. The cases of Onobruchere v. Esegine (supra), Olohunde v. Adeyoju (2000) 10 NWLR (676) 562 at 599 and PHMB v. Eyitagha (2000) 11 NWLR
(677) 154, all cited in the Appellant’s brief, clearly demonstrate the position.
In the present appeal, I have found above that the burden of proof was not misplaced but properly and appropriately placed by the Tribunal where the law says and provides that it should be placed and the authorities on the effect of a misplacement of the burden, do not apply to the Appellant’s case.
Apparently, the Appellant’s Issue 1 is bereft of merit and it is resolved against him.
Under Issue 2, Appellant had attacked the holding of the Tribunal that the 2nd Respondent conducted or held primary election for the nomination of the 1st Respondent as a candidate for the election on the ground that it was perverse.
?I should start a consideration of the issue by restating what a perverse decision is, in relation to judicial proceedings of a Court of law or tribunal, as defined by judicial authorities. Simply and concisely put, a perverse decision of a court or tribunal is one which is not based on or supported by any material evidence adduced by the parties before the Court and which ignores such material evidence. See NEPA v. Ososanya (2004) 5 NWLR (867) 601 at 624, also reported in
(2004) 1 SC (Pt. 1) p.159. Agbomeji v. Bakare (1998) 9 NWLR (564) 1 at 8, cited in the Appellant’s brief and Olowu v. Amayo (2011) LPELR 4755 (CA), Atologbe v. Shorun (1985) 1 NWLR (2) 360, Egba v. Appah (2005) 10 NWLR (934) 464.
The finding by the Tribunal said to be perverse, at page 2036 of the record of appeal and set out at page 13 of 40 of the Appellant’s brief is thus:
“That the APC Primaries fixed for 5/12/2014 for Governorship could not hold neither did the rescheduled Primaries fixed for 10th and 11th December, 2014 hold as on those dates members of the APC were still in Lagos for the National Convention of the APC… He agreed that another Primary was fixed for 12:00 on 11th May, 2014 (sic, read 11th December, 2014) and that INEC official and Security Agents were present at the Hotel, Venue of the Primaries but the venue was cancelled as it was not safe because of the rowdiness. Two court orders were served on the APC even at that venue and so INEC officials left and they adjourned.”
?However, a reading of page 2036 of the record of the appeal would show that the above passage was only an extract of what the Tribunal set out as a summary of the
evidence given by the RW3 under Cross examination and not a holding or finding made after the assessment or evaluation of the evidence of the witness, as claimed by the Appellant’s Counsel. It is therefore not correct to say that the Tribunal agreed with the Appellant that the 2nd Respondent did not hold primaries by the said extract of a review by way of summary, of the evidence of the witness.
?Learned Counsel for the Appellant has attacked the finding by the Tribunal that there was paucity of facts on the challenge by the Appellant on the nomination of the 1st Respondent by the 2nd Respondent even after stating that the chronology of event in relation to his exit in the PDP and entry to the 2nd Respondent, was incredible. However before making the said remark at page 2045 of the Record of Appeal that there was paucity of facts, the Tribunal had assessed the evidence adduced before it on the resignation of the 1st Respondent from the PDP and his becoming a member of the 2nd Respondent at page 2043-4 of the Record of Appeal and found that the evidence by the 1st and 2nd Respondent on the membership of the 1st Respondent in the 2nd Respondent as at the date of
the election, was not effectively controverted by the Appellant and so credible. Once again, what the Tribunal said on the issue was unfairly slanted by Counsel and taken out of the con it was made. This was what the Tribunal said which led to the statement in question:
“By paragraph 9 of the Petition, the Petitioner had pleaded that the 1st Respondent at all time material was a member of the PDP in Nzorov Council Ward of Guma LGA of Benue State with his name as number one of page one of the Register of Members of the Ward before he purportedly left the party. By the same paragraph, the Petitioner had pleaded to rely on the Register containing the name of the 1st Respondent at the hearing of this Petition. PW3 had testified that the 1st Respondent was a member of the PDP, the Tribunal finds it curious that the Register of the members of PDP for Nzorov Council Ward of Guma LGA of Benue State pleaded in paragraph 9 of the Petition was tendered by the Petitioner but no official of the PDP came to identify it neither did any of the Petitioners’ witnesses identified it, PW3 who testified that the 1st Respondent was a member of PDP at the relevant time, the
pleadings and evidence before the court for the Petitioner has not shown him to be a PDP Party Executive responsible for the Registration of PDP members in that ward. The PDP as a party, have not proffered any evidence in this petition claiming the 1st Respondent as their own at the relevant time. In the absence of all of the above evidence in this petition the Petitioner has not been able to dislodge Exhibit R3 the letter of resignation of the 1st Respondent from the PDP. The PW3 himself in his evidence testified that the RW1 Chief Felix Agbaka was the PDP Chairman at the Nzorov Ward at the relevant time and any person that wants to resign from PDP, the procedure was that such a person would write a letter of resignation to the Chairman of that Ward.
It is evidence of RW2 that he is Chairman of the APC in Nzorov Ward and he registered the 1st Respondent as a member of the APC on 9/12/2014. Through this witness Exhibit R1 the membership card of the 1st Respondent was put in evidence. Exhibit R4A, the APC membership Register also revealed at serial number 381 therein that the 1st Respondent was registered. In the opinion of the Tribunal, the discrepancy in the
APC Membership number of the 1st Respondent in Exhibit R7 is not material in as much as his membership number in Exhibit R1 which is his membership card and Exhibit R4A which is the APC Membership Register at the Ward level where he registered is the same. In the face of the fact that his letter of resignation Exhibit R3, has not been dislodged, it is trite that minor discrepancies or inconsistencies are not material in the face of overwhelming evidence on an issue. It is trite law that in election petition the Petitioner must win his case on the strength of his own case and not on the weakness of the Respondent?s case or defence. See Amachree v. Goodhead & Ors (2008) LPELR -3760. In the light of the foregoing, this Tribunal finds that the 1st Respondent was a member of the APC at the relevant time having resigned from the PDP.”
?The only answer to the evidence of the Respondent that the 1st Respondent was nominated by the 2nd Respondent at a primary for consensus held on the 11/12/2015, was that it was impossible, contrived and false. However the evidence in Exhibit R3; the 1st Respondent resignation letter from PDP, Exhibit R1; his membership card of
the APC, R4; which is the APC membership Register for the ward where he registered, Exhibit R10; application by him for waiver and Exhibit R11; the letter granting the waiver, which was not controverted by the Appellant shows, on the preponderance of the evidence before the Tribunal, that there was paucity of facts to prove the allegation in the petition that 1st Respondent was not a member of the 2nd Respondent as at the 11th/12/2015 when he was nominated for the election.
?On the issue of whether the 2nd Respondent conducted primary election at which the 1st Respondent was nominated, Exhibit B; which is a report of the consensus ratified by 3,015 of the members and leaders of the APC for the nomination of the 1st Respondent was not challenged and controverted by credible evidence from the Appellant who had relied heavily on Exhibit P11; a DVD of an interview said to have been recorded and aired on channels TV Station; a private company, which was downloaded by PW3, called by the Appellant. The Tribunal is quite right in its finding that the Exhibit which was tendered to prove the truth of the contents of the interview or recording by the said TV Station, was
not direct evidence from PW3 and so was documentary hearsay since PW3, through whom it was tendered was not present when the interview was conducted and so could not answer questions in cross-examination in the Exhibit. See Ojo v. Gharoro (supra) and INEC v. A.C. (supra) also reported in (2009) 2 NWLR (1126) 524 cited in the 1st Respondent’s brief. PW3 was not the maker of the contents of Exhibit P11, the truth of which was sought to be proved by it even though he downloaded it by a process that is open to the whole world and unimaginable manipulation by any person that was interested in doing so. Exhibit P11 may be documentary evidence under Section 258 of the Evidence Act, 2011, but because the person through whom it was tendered was not the maker of the contents which the Appellant sought to prove the truth of by its production in evidence, remain documentary hearsay for that purpose and cannot speak for itself on the truth of its content in the absence of oral evidence of people who physically conducted or witnessed the conduct of the interview of the TV Station. The evidence of PW3 under cross examination on whether the 2nd Respondent conducted primary
election at all on the 11/12/2015 was discredited when the witness later admitted that he was not a member of the 2nd Respondent and was therefore not aware of its internal affairs and did not know about the consensus meeting/primary at which the 1st Respondent was nominated for the election. It is clear from the record of the evidence adduced by the Respondents which was not effectively controverted, on the holding of the 2nd Respondent?s primary and nomination of the 1st Respondent for the election in question, they had called evidence which supported the case they put up in their denial and defence of the allegation made by the Appellant in the petition against them. In Kubor v. Dickson (2013) 4 NWLR (1345) 534 at 574, Onnoghen, JSC had stated inter alia that:
?Evidence of nomination and sponsorship of a candidate by a political party lies in the declaration of the winner of the party primary election conducted to elect the party’s candidate for the general election in question coupled with the political party forwarding the names of the said elected candidate to the 3rd Defendant as its nominated candidate for the election.”
?The evidence
adduced by the 1st and 2nd Respondent before the Tribunal, which the Appellant did not effectively controvert as stated earlier; was that the 1st Respondent was declared winner of the 2nd Respondent primary election conducted, on the 11/12/2014, after it was earlier adjourned due to rowdiness at the initial Hotel Venue where it was scheduled, and that the 2nd Respondent forwarded his names to the 3rd Respondent as its nominated candidate for the election. This evidence clearly supports the Tribunal’s finding that the sponsorship of the 1st Respondent by the 2nd Respondent as a candidate for the election cannot, but stand. For that reason, the finding cannot rightly be said to be perverse simply because it goes against the Appellant. It is therefore not correct, once more, to say that they did not. Rather, the evidence adduced by the Appellant in proof the allegation or assertion contained in the ground of their petition was outweighed on the imaginary seal of justice on which it was placed alongside that adduced by the Respondent, by the Tribunal in its determination of the petition. The material evidence placed before the Tribunal by the parties to the
petition, from the record of the judgement appealed against, was properly and fully assessed and evaluated by it in accordance with established principles of law on the factors considered in evaluation of evidence as set in the case of Osigwe V. Unipetrol (2005) 5 NWLR (918) 261, at 284, cited in the Appellant?s brief, and Others such as the very famous case of Mogaji v. Odofin (1978) 4 SC, 91 (1978) NSCC, 275, before arriving at the decision that the Appellant had failed to prove his sole ground of challenging and questioning of the qualification of the 1st Respondent to contest the election in question on the basis of not being sponsored by a political party as required by Section 177(1)(c) of the 1999 Constitution. On the preponderance of the evidence before the Tribunal, the 1st Respondent was sponsored by the 2nd Respondent, a registered political party and he admittedly contested the election on the sponsorship and platform of the party without any challenge from any member of the party or the 3rd Respondent, to who his nomination and sponsorship by the 2nd Respondent was sent and who accepted and allowed or permitted him to contest the election as
a candidate sponsored by the 2nd Respondent. In the result, I find no merit in the Appellant’s issues 2 and 3 which are resolved against him.
With the resolution of the above issues against the Appellant, Issue 5 contained in the Appellant’s brief, has become of no practical use or value to him. However, always mindful of the exhortation by the apex Court that the Court has a duty to consider and pronounce on all issues properly submitted to it for determination in an appeal, I would in addition to saying so, consider the issue, howbeit briefly.
It may be recalled that the issue is whether it was proper for the Tribunal to have relied on the provision of Section 140(2) of the Electoral Act (as amended) to dismiss the petition.
The reason given by the Tribunal for the dismissal of the Appellant’s petition is contained in the last paragraph of its judgement where it said:
“In conclusion, the Tribunal in the light of all of the above resolves Issues Two in favour of all the Respondents. The Petition fails and is hereby dismissed…”
?There is no mention of Section 140(2) as the reason for the dismissal of the petition in the above conclusion and so the issue is of
no moment in the ratio decidendi for the dismissal of the petition. My duty to further consider the arguments of Counsel thereon, abates and ends here since the Issue did not arise from the decision of the Tribunal to dismiss the Appellants petition.
In the final result, with the resolution of all the Issues 1, 2, and 3 that are material in the determination of the appeal, against the Appellant, the appeal is left devoid of merit and so all the grounds upon which it is premised, fail. The appeal is consequently dismissed and the judgment of the Tribunal delivered on the 21/09/2015, is hereby affirmed.
Parties shall bear their respective costs of prosecuting the appeal.
Cross Appeal by the 1st Respondent/Cross Appellant:
I have read a draft of the lead judgment delivered by my learned brother Rita N. Pemu, JCA in respect of the cross appeal by the 1st Respondent/cross Appellant and agree with the resolution of the objection by the Appellant/Cross Respondent to some of the grounds of the cross appeal as well as the merit of the cross Appeal. For wanting in merit, the cross appeal is also dismissed by me in terms of the lead judgment.
Cross Appeal by the 2nd
Respondent/Cross Appellant:
Having read in draft, the lead judgment written by my learned brother Rita N. Pemu, JCA in the Cross Appeal, the views expressed on both the motion filed by the Appellant/Cross Respondent in respect of some grounds thereof and on the merit of the cross appeal, are the same with mine. I agree with and adopt the views and the conclusions reached on the motion and the Cross appeal as set out in the lead judgment, as my decision in the Cross appeal.
MAIN APPEAL
IGNATIUS IGWE AGUBE, J.C.A.: I AGREE.
CROSS APPEAL BY THE 1ST RESPONDENT
IGNATIUS IGWE AGUBE, J.C.A.: I AGREE.
CROSS APPEAL BY THE 2ND RESPONDENT
IGNATIUS IGWE AGUBE, J.C.A.: I AGREE.
MAIN APPEAL
RITA NOSAKHARE PEMU, J.C.A.: I AGREE.
CROSS APPEAL IN RESPECT OF THE 1ST RESPONDENT/CROSS APPELLANT
RITA NOSAKHARE PEMU, J.C.A.: The 1st Respondent/Cross Appellant ORTOM SAMUEL IORAER filed a notice of Cross Appeal on the 9th of October 2015, being dissatisfied with part of the decision/judgment of the BENUE STATE GOVERNORSHIP ELECTION PETITION TRIBUNAL, HOLDEN AT MAKURDI, coram; HONOURABLE JUSTICES, E.A. KARATU, C.C. OGUNSANYA and HADIZA ALI-JOS, delivered on the 21st day of September,
2015.
The Notice of Cross Appeal of the 1st Respondent/Cross Appellant is encapsulated in the Record of Appeal Vol. III, pages 2069 -2077, with seven (7) grounds of Appeal – pages 2070 – 2077 of the Record of Appeal Vol. III.
SYNOPSIS OF FACTS
The Appellant’s petition had been dismissed at the Tribunal below and he appealed the decision in this present Appeal vide Notice of Appeal filed on the 2nd of October, 2015 – pages 2047 – 2058 of the Record of Appeal Volume II. The Notice of Appeal has fifteen (15) Grounds of Appeal.
The gravamen of the Petitioner’s case at the Tribunal is that, the 1st Respondent/Cross Appellant ORTOM SAMUEL IORAER was at the time of the Election, not qualified/disqualified to contest the Election; that he was not duly elected by a majority of lawful valid votes cast at the governorship election in Benue State, held on the 11th day of April, 2015, and announced on the 13th day of April 2015.?
The 1st Respondent/Cross Appellant is desirous of appealing part of the decision of the Tribunal.
?The 1st Respondent/Cross Appellant has distilled three (3) issues for determination in his brief of Argument filed on the 19th of October 2015 – pages 6
-7 thereof. The issues are:
ISSUE NO. 1
WHETHER QUALIFICATION OF 1ST RESPONDENT/CROSS APPELLANT AS A GROUND WAS VALIDLY COUNTENANCED BY THE TRIAL TRIBUNAL AT ALL IN THE FACE OF OBJECTION TO SAME AS BEING CAUGHT BY ISSUE ESTOPPEL, RES JUDICATA AND ABUSE OF COURT PROCESS BORNE OUT BY JUDGMENTS IN PRE-ELECTION SUITS NO. FHC/ABJ/CS/1057/2014 AND FHC/MKD/CS/9/2015 (GROUNDS 1, 2, 3 AND 7.)
ISSUE NO. 2
WHETHER THE PETITION OF THE APPELLANT/1ST CROSS RESPONDENT OUGHT NOT TO HAVE BEEN DISMISSED AS ABANDONED PURSUANT TO PARAGRAPH 18(1) AND (4) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED) WITHOUT THE NEED TO COUNTENANCE SAME ON MERIT (GROUND 6)
ISSUE NO. 3
WHETHER THE TRIAL TRIBUNAL RIGHTLY OVERRULED 1ST Respondent/Cross Appellant’s objection To THE Admissibility OF ANY OF EXHIBITS P11, P16 AND AUTHENTICITY OF R18 A AND R18 B (GROUNDS 4 AND 5).
The 1ST RESPONDENT/CROSS APPELLANT BRIEF is settled by CHIEF ADENIYI AKINTOLA SAN.
In answer to the 1st RESPONDENT/CROSS APPELLANT’S BRIEF, the APPELLANT/CROSS RESPONDENT filed a brief of argument on the 23rd of October 2015. It is settled by ADEBAYO ADENIPEKUN SAN.
?The brief has, at its page 2, three (3) issues for
determination and they are:
ISSUE NO. 1
WHETHER THE PETITION OUGHT TO HAVE BEEN DISMISSED BY THE LOWER TRIBUNAL ON THE BASIS OF THE CROSS-RESPONDENT’S OBJECTION THAT THE LOWER TRIBUNAL LACKED JURISDICTION TO DELVE INTO ISSUES OF NON-QUALIFICATION OF THE 1ST RESPONDENT/CROSS APPELLANT ON THE GROUND OF LOCUS STANDI, ISSUE ESTOPPEL, RES JUDICATA, AND ABUSE OF COURT PROCESS. (DISTILLED FROM GROUNDS 1, 2, 3 AND 7 OF THE 1ST RESPONDENT/CROSS APPELLANT’S NOTICE OF APPEAL.)
ISSUE NO. 2
WHETHER THE PETITION OUGHT TO HAVE BEEN DISMISSED ON THE BASIS OF NON-COMPLIANCE WITH PARAGRAPHS 18(1) AND (4) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED) BEING AN ISSUE NEVER RAISED, ARGUED NOR CANVASSED BY THE 1ST RESPONDENT/CROSS-APPELLANT DURING THE PRE-HEARING SESSION AT THE LOWER TRIBUNAL (GROUND 6).
ISSUE NO. 3
WHETHER THE ADMISSIBILITY OF EXHIBITS P11, P15 AND AUTHENTICITY OF R18, R18 A AND R18 B CAN BE Validly RAISED BY THE 1ST RESPONDENT/CROSS-APPELLANT IN THIS CROSS APPEAL (GROUND 4 AND 5).
?A cursory look at the respective issues for determination of the 1st Respondent/Cross Appellant and that of the Appellant/Cross Respondent, indicates that they deal with the same
issues.
We shall however entertain this Cross/Appeal based on the 1st Respondent/Cross Appellant’s issues proffered for determination.
Pertinent to note that the Cross Appellant filed a reply to the 1st Cross Respondent’s brief on the 28th of October, 2015.
On the 13th of November, 2015, learned Counsel for the Respondents adopted their respective briefs of argument.
The Appellant had urged that this Honourable Court dismiss the Cross Appeal, and allow his own appeal.
The Cross Appellant had urged this Honourable Court to allow the Cross Appeal at the threshold.
The 3rd Respondent in this appeal only filed a brief of argument on the 20th of October, 2015. He adopts same, but filed no process in the Cross Appeal.
The Appellant/Cross Respondent had by notice in a motion, filed on the 6th day of November 2015, sought an order of this Honourable Court “striking out grounds 3, 4, 5, 6 and 7 of the Notice of Cross Appeal filed by the 1st Respondent/Cross Appellant for incompetence, as well as the issues for determination formulated therefrom”
?The motion is supported by an eighteen paragraphs affidavit deposed to by one M.T. Shitindi Esq. At pages 2 – 4 of the
Appellant/Cross Respondent’s brief of argument in respect of the Cross-Appeal filed by the 1st Respondent/Cross Appellant on the 23rd of October 2015, he had brought to the fore this motion on notice and argued same therein.
While Preliminary objections essentially challenge the competence and hearing of an appeal, Motions can be filed to challenge Grounds of Appeal in a Notice of Appeal.
We shall before going into the merits of this Cross Appeal consider the merit in the motion on notice filed on the 6th of November 2015.
The grounds upon which the application is based are:
(1) That ground 3 of the Notice of Cross Appeal is a fresh issue.
2)That grounds 4 and 7 of the Notice of Cross Appeal are vague and contain defective particulars.
(3) That grounds 5 and 6 of the Notice of Cross/Appeal filed by the 1st Respondent/Cross Appellant did not flow from the judgment of the lower Tribunal.
CONSIDERATION OF THE MOTION
Ground No. 1
Learned Counsel had argued that ground 3 raises a fresh issue, which was never pleaded nor canvassed by them at the lower Tribunal.
Ground 3 of the 1st Respondent/Cross Appellant’s notice of Cross Appeal has this to say:
?”THE LEARNED JUDGES OF
THE LOWER TRIBUNAL ERRED IN LAW AND CAME TO A WRONG DECISION IN OVERRULING THE OBJECTION OF THE 1ST RESPONDENT/CROSS APPELLANT WHEN THEY HELD AT PAGE 35 OF THE JUDGMENT THAT ‘THE TRIBUNAL AGREED WITH THE LEARNED SENIOR COUNSEL TO THE PETITIONER THAT THE DISMISSAL OF THE SUIT BEFORE THE FEDERAL HIGH COURT MAKURDI, DOES NOT AMOUNT TO LAYING TO REST THE ISSUES IN THAT MATTER SINCE IT NEVER GOT TO THE HEARING STAGE.”
A look at the originating process in respect of suit No. FHC/MKD/CS/9/2015 (a suit before the Makurdi Federal High Court) shows that it was a process in respect of which questions for determination were raised. In order words, it was an Originating Summons – pages 2024 of the Record of Appeal Vol. II, indeed by way of “CONCURRENT ORIGINATING SUMMONS” – pages 173 – 175 of Record of Appeal Vol. II. In that process, the 1st Respondent/Cross Appellant was the 2nd Defendant.
Prayer One in the Originating Summons is
“WITHIN THE MEANING AND INTENDMENT OF THE PROVISIONS OF SECTION 177(C) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) IS THE 2ND DEFENDANT QUALIFIED TO CONTEST FOR THE ELECTION INTO THE OFFICE OF GOVERNOR OF BENUE STATE
ON THE 28TH FEBRUARY, 2015?
Prayer 2 has this to say:
“CONSIDERING THE CLEAR AND UNAMBIGUOUS PROVISION OF SECTION 177(C) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED), WHETHER IT IS CONSTITUTIONAL AND LAWFUL FOR THE 1ST DEFENDANT TO SUBMIT THE NAME OF THE 2ND DEFENDANT TO THE 3RD DEFENDANT AS THE 1ST DEFENDANTS CANDIDATE FOR THE BENUE STATE GOVERNORSHIP ELECTION OF 28TH FEBRUARY 2015 ON THE PLATFORM OF THE 1ST DEFENDANT.
At page 2025 of the Record of Appeal, Vol. II, the Tribunal had observed that Exhibit R15 contains the Reliefs sought by the Appellant against the Defendant in suit NO. FHC/MKD/CS/9/2015, which deal with the issue of declaring that the 2nd defendant is not qualified to contest the election into the office of Governor of Benue State etc. – page 2025 – 2026 of the Record of Appeal Vol. II. See page 174 of the Record of Appeal, Vol. I.
Learned Counsel had argued that, as shown in the judgment of the Federal High Court Makurdi tendered before the lower Tribunal, the decision thereto was final.
?Indeed at page 35 of the judgment in respect of the PETITION (page 2028 of the Record of Appeal Vol. II) – the learned
Judges of the Tribunal observed thus:
“The Tribunal therefore holds in respect of the application of the plea of Doctrine of Res Judicata in this petition in relation to the much earlier stated suit in the Federal High Court mandating the Tribunal hereby adopts all its earlier consideration and provisions above in relation to the present petition. The Tribunal agrees with the learned Senior Counsel to the Petitioner that the dismissal of the suit before the Federal High Court, Makurdi does not amount to laying to rest the issues in that matter since it never got to the hearing stage, moreover, the petition was not a party in the suit before the Federal High Court, Makurdi or a party as known to law to any of the parties therein e.g. PDP and in any case election petition cases are sui generis unless in normal civil cases. Hence the pleading Res Judicata is not sustained.”
?We are not restating this judgment in respect of the dismissal of the suit, but to show that the issue of the nomination and the gratification of the 1st Respondent/Cross Appellant (2nd Defendant in the lower Federal High Court does not constitute a “fresh issue”. It had been canvassed and
ventilated at the two lower courts.
In his reply learned Senior Counsel for the 1st Respondent/Cross Appellant, Chief Adeniyi Akintola SAN had argued (rightly in our view) that a matter which has been canvassed and pronounced upon by a court in favour of a party cannot amount to a fresh issue when challenged on appeal citing OLALOMI IND LTD. v. N.I.D.B (2009) 16 NWLR (Pt. 1167) 266 SC 286 paragraph 9-
What amounts to an issue on appeal?
Simply put, an issue is a point that has arisen in the pleadings of the parties, or either of them, which forms the basis of the dispute or litigation requiring the resolution by the Court of Law.- METAL CONSTRUCTION (W.A) LTD v. MIGLIORE (1990) 1 NWLR (Part 126).
It is evident that there arose an issue concerning the nomination of the 1st Respondent/Cross Appellant both at the Federal High Court in FHC/MKD/CS/9/2015, as well as in PETITION NO EPT/BGN/GOV/01/2015.
It is a gross misconception therefore to allude to the fact that Ground 3 in the 1st Respondent/Cross Appellant’s Grounds of Appeal constitutes a fresh issue.
?Without much ado, we are of the view that the ground of objection is utterly misconceived, it lacks merit and
therefore the application to strike out ground 3 is hereby refused by us, as we find that ground 3 in the Cross/Appellant’s Notice of Cross Appeal does not constitute a new issue.
Learned Senior Counsel had also sought that grounds 4 and 7 of the Notice of Cross Appeal be struck out, on grounds of defective; and vague particulars.
In his brief of argument in respect of the Cross Appeal filed on the 23rd of October, 2015, the learned Senior Counsel Adebayo Adenipekun SAN had urged this Honourable Court to also strike out grounds 4, 5, 6 and 7 of the Notice of Cross Appeal.
?We have taken a cursory look at grounds 4 and 7 of the Notice of Cross Appeal and we are of the view that grounds 4 and 7 are defective and vague in their particulars, and they negate the rules as to drafting of grounds of Appeal and indeed the Court of Appeal Rules 2011 in its relevant provisions. It cannot be overemphasized that Grounds of Appeal should be so precise, and understandable to the adverse party and indeed the Court. It is not a forum to test your grammatical prowess or write jargon, instead of pure and simple English language in order to ventilate your grouse. Axiomatic that no
matter the good faith accompanying Grounds of Appeal, the Courts would not hesitate to strike out offensive, defective, and vague grounds which portray nothing but confusion.
We therefore in the circumstances say unequivocally that grounds 4 and 7 are liable to be struck out and same are hereby struck out as being defective, ambiguous in its form, and indeed vague in its particulars.
It is also the grouse of the Appellant/Cross Respondent that grounds 5 and 6 did not flow from the judgment of the lower Tribunal.
Learned Counsel for the Appellant/Cross Respondent had argued that grounds 5 and 5 do not flow from the judgment of the lower Tribunal.
This is a gross misconception because Exhibit P11 was indicated in the judgment of the Tribunal and indeed the issuance of the hearing notice. As long as an issue is mentioned in a judgment, it becomes part of the record of that judgment, more so when it has been pronounced upon.
This objection has no root to stand on.
The result is that the motion on notice succeeds in part, while Grounds 4 and 7 of the grounds of Appeal in the Notice of Cross Appeal are hereby struck out, grounds 3, 5 and 6 are hereby held to be proper
grounds.
MAIN CROSS APPEAL
Having dealt with the motion, we now go on to the main cross appeal based on grounds 1, 2, 3, 5, and 6.
ISSUE NO. 1
The 1st issue for determination distilled by the 1st Respondent/Cross Appellant is from grounds 1, 2, 3 and 7 of the Grounds of Cross Appeal.
Ground 7, having been struck out, there can no longer be any consideration of that issue by the 1st Respondent Cross/Appellant as the law is trite, that issues flowing from a ground of appeal that has been struck out, suffers the same fate and are caught by the same virus as that Ground of Appeal. Accordingly, we hereby strike out issue NO. 1 in the 1st Respondent/Cross Appellant’s Brief of Argument filed on the 19th of October 2015.
ISSUE NO. 2
Issue No. 2 in the 1st Respondent/Cross Appellant’s brief of Argument is distilled from ground 6 of the Notice of Cross/Appeal of the 1st Respondent.
The 1st Respondent Cross/appellant had argued that this issue centres on application for prehearing notice, which was purportedly filed by the Appellant at the close of pleadings ostensibly in compliance with the mandatory provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010
(as amended).
That though this was made an issue at the earliest opportunity, the Tribunal declared that it would consider it at end of the Trial. Learned Senior Counsel had argued that the application for prehearing notice was not signed as required by law. Simply put, Exhibit R18 A- the said application for prehearing notice was not signed as required by law citing OKAFOR v. NWEKE (2007) 10 NWLR (Pt 1043) 521. The process he submits, was not signed by a known legal practitioner.
He submits that an incompetently signed process is dead on arrival and it ceases to exist in law.
That the fact that Paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) allows the Tribunal to defer the resolution of that threshold issue till the end of trial, this is not an excuse not to impose the statutory sanction for fatal, and incurable failure to apply for prehearing notice under Paragraph 18(A).
Let us quickly state here, that where the workings of an Act or Rule place mandatory compliance, any exercise of discretion will be without jurisdiction, and therefore a nullity. OKE v. MIMIKO (NO.1) 2014 1 NWLR (Pt. 1388) 225.
?Now, at the signature column of the
application for issuance of the hearing notice dated 26th of May, 2015 are four names. T. T. Hyundu Esq., E. I. laren Esq., B. T. Azuasongo Esq., and G. L. Usongo Esq.- page 445 of the Record of Appeal, Vol. l.
The names T. T. Hyundu Esq. is immediately below the mark and/or signature thereon.
We are of the view that this suffices. If immediately below the signature there was something like T. T. Hyundu and co, this would have been a different matter. Moreover the petition itself was signed by the same T. T. Hyundu Esq. – pages 5 – 6 of the Record of Appeal. (vol. 1).
On the record, there is a statement indicating the number of witnesses to be called at the hearing of the petition and, list of documents the petitioner intends to call. Again T. T. Hyundu Esq. signed these processes. Pages 8 – 10 of the Record of Appeal.
We are of the view that other Counsel named under the signature are from the same chambers as T. T. Hyundu & Co.
At page 35 of the judgment of the Tribunal – page 2029 of the Record of Appeal Vol. II, the Tribunal observed inter alia (on the issue of the signature on the originating process (PETITION) thus:
?”On this issue raised by all learned
Senior Counsels for the Respondents that the originating process which is the petition, was not signed by any recognizable and named legal practitioner and therefore it is fatal as it renders the petition defective. The Tribunal has taken note of all the authorities cited in the above regard. It is pertinent that the Tribunal restate that election petitions are sui generis. Paragraph 4(3)(b) of the 1st Schedule to the Electoral Act 2010, as amended, stipulate that a petition shall be signed by the petitioner or his Counsel if any. Exhibit R16 which was signed by the petitioner, Rt. Hon. Prince Terhemen Tarzoor at the foot of the petition on page 6 hence all the Respondents objections on the signing of the petition are of no moment and are hereby overruled.”
We dare say that this view of the Tribunal ought of necessity to extend to the prehearing notice process complained about.
Let us quickly observe here that the extant position with regard to application for the issuance of prehearing notice is that it can be done orally by counsel, without strict adherence to the need to apply formally.
Moreso, as earlier observed, there is no doubt that Counsel ostensibly
leading other Counsel for the Appellant signed the Petition and the application for the notice of prehearing notice sheet. A cursory look at page 1927, of the Record of Appeal Vol. II, shows that the Appellant/Cross Respondent led evidence (both oral and documentary), that it was T. T. Hyundu, one of the Counsel to the Appellant/Cross Respondent that signed Exhibit R18 A. – page 1027 of the Record of Appeal Vol. 1. Pertinent to note that this evidence remains uncontroverted.
As long as the relevant process was not ex facie signed for, and on behalf of a party, that suffices.
To strike out a petition simply because a motley of Counsel are listed under the signature column, but one of them whose name is immediately below the signature column signs, would occasion grave injustice to the party affected and that would be overstretching technical justice at the expense of substantial and unadulterated justice.
?As argued by the Appellant/Cross Respondent in his brief of argument in respect of the 1st Respondent Cross Appeal, all the processes filed at the Tribunal by all the parties acknowledged that T. T. Hyundu was one of the Counsel to the Appellant/Cross Respondent,
and that in all the respective replies and motion filed by all the Respondents, the Respondents referred to T. T. Hyundu, and used his law firm as address in serving all the processes used at the lower Tribunal. Therefore they are not misled.- See paragraph 5.5 – 5 – 8 of the Appellant/Cross Respondents’ brief of Argument in respect of the Cross Appeal filed by the 1st Respondent.
In the circumstances, this issue is resolved in favour of the Appellant/Cross Respondent and against the 1st Respondent/Cross Appellant. The Tribunal was right not to have dismissed the petition on this ground.
ISSUE NO. 3
It is the 1st Respondent/Cross Appellant’s case that the Tribunal wrongly overruled the 1st Respondent/Cross Appellant’s objection to the admissibility of any of Exhibits P11, P16, and authenticity of Exhibits R18, R18 A and R18 B.
Again, as observed in relation to the treating of issue No. 1, this Issue 3 having been caught by its flowing from ground 4, which has been struck out by this court in this judgment, Issue 3 cannot stand as you cannot put something on nothing.
?There shall be no need to consider this issue in the circumstances. Accordingly, Issue No. 3 is
hereby struck out.
The result is that the 1st Respondent/Cross Appellant’s appeal fails in its entirety as lacking in merit and same is hereby dismissed.
Parties to bear their respective costs.
CROSS APPEAL IN RESPECT OF THE 2ND RESPONDENT/CROSS APPELLANT
RITA NOSAKHARE PEMU, J.C.A.: The 2nd Respondent/Cross Appellant ALL PROGRESSIVE CONGRESS (APC) filed a Notice of Cross Appeal on the 8th of October, 2015 pursuant to the practice Direction of this Honourable Court.
This is because he is dissatisfied with some of the findings/decision of the Benue State Governorship Election Petition Tribunal sitting in Makurdi; Coram Justice Elizabeth A Karatu, Catherine Ogunsanya and Hadiza H. Ali-Jos in Petition No. EPT/BGN/GOV/01/2015 delivered on the 21st day of September 2015.
The Notice of Cross Appeal which was filed on the 8th of October 2015 encapsulates four (4) Grounds of Appeal- pages 2059 – 2067 of the Record of Appeal Vol. III.
SYNOPSIS OF FACTS: Simply put, it is the case of the 2nd Respondent/Cross Appellant, that the trial court had dismissed the Motion on Notice of the 2nd Respondent/Cross Appellant which challenged the Tribunal’s jurisdiction – pages
1994-2046 of Volume II of the Record of Appeal.
The Tribunal had also dismissed the Appellant’s petition.
The 2nd Respondent/Cross Appellant is therefore dissatisfied with the dismissal of the Motion on Notice challenging the Tribunal’s judgment.
The Motion in issue is at pages 803 – 984 of Volume I of the Record of Appeal. The Appellant’s counter affidavit and exhibits can be found at pages 985 – 1035 of Volume 1 of the Record of Appeal.
The 2nd Respondent/Cross Appellant filed its brief of argument on the 19th of October 2015. It is settled by Sebastine T. Hon. SAN.
Three (3) issues were distilled from the Grounds of Cross Appeal. They are:
ISSUES:
1. WAS THE TRIBUNAL RIGHT WHEN, IN DISMISSING THE 2ND RESPONDENT/CROSS APPELLANT’S MOTION CHALLENGING ITS JURISDICTION, IT HELD THAT RES JUDICATA DID NOT APPLY TO THE PETITION AND THAT THE APPELLANT HAD LOCUS STANDI TO PRESENT THE PETITION? (GROUNDS 1 AND 2 OF THE GROUNDS OF CROSS APPEAL).
2. WAS THE TRIBUNAL RIGHT IN UPHOLDING THE APPELLANTS THIRD GROUND OF PETITION? (GROUND 3 OF GROUNDS OF CROSS APPEAL.)
?3. WAS THE TRIBUNAL RIGHT IN LAW WHEN IT REFUSED, FAILED OR NEGLECTED TO CONSIDER AND RULE ON 2ND RESPONDENTS CHALLENGE
TO ITS JURISDICTION ON ACCOUNT OF THE ISSUES RAISED BY THE APPELLANT BORDERING ON ALLEGED INFRINGEMENT OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED? (Ground 4 of Grounds of Cross Appeal)
The Appellant/Cross Respondent filed a Brief of Argument in respect of the cross Appeal filed by the 2nd Respondent on the 23rd of October 2015.
In it, four (4) Issues for determination were distilled from the Grounds of Cross Appeal and they are:
(1) WHETHER THE LOWER TRIBUNAL WAS RIGHT WHEN IT CONSIDERED THE CIRCUMSTANCES OF THIS CASE AND HELD THAT THE PLEA OF RES JUDICATA CANNOT BE INVOKED AGAINST THE APPELLANT (PETITIONER) (ground 1)
(2) WHETHER THE LOWER TRIBUNAL WAS RIGHT WHEN IT HELD THAT THE APPELLANT (PETITIONER) HAS SUFFICIENTLY SHOWN HIS LOCUS STANDI TO COMMENCE THIS PETITION (ground 2)
(3) WHETHER OR NOT GROUND 3 OF THE NOTICE OF CROSS-APPEAL IS NOT AN ACADEMIC EXERCISE (GROUND 3)
(4) WHETHER THE LOWER TRIBUNAL HAS THE POWER TO DETERMINE THE APPLICABILITY OF THE PROVISION OF SECTION 177 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) TO THE PETITION BEFORE IT. (Ground 4)
?The Appellant/Cross Respondent’s brief of
Argument in respect of the Cross Appeal filed by the 2nd Respondent is settled by Adebayo Adenipekun, SAN.
There is a 2nd Respondent/Cross Appellant’s reply on point of law to Appellant/Cross Respondent’s brief of Argument filed on the 23rd of October, 2015. The reply brief was filed on the 29th of October, 2015.
On the 13th of November 2015, parties adopted their respective Briefs of Argument.
At the hearing of the Appeal on the 13th of November, 2015, the 2nd Respondent had intimated court that he filed a Motion on Notice on the 30th of October 2015 praying Court for the reliefs stated thereon. That the motion has six grounds upon which it is predicated, and a four paragraphs affidavit in support thereof. Urged Court to strike out the Grounds of Appeal complained of, and the issues for determination distilled therefrom. There is also a written address in support of the Application.
He urges this Honourable Court to adopt same in considering the motion on notice. He submits that where there is no jurisdiction, the issue of waiver does not arise; and that the issue of Jurisdiction cannot be waived. He urged Court to strike out the offending process.
?In reaction to
this motion is a counter affidavit filed by the Appellant/Respondent on the 10th of November, 2015 with a written address in support thereof.
The Appellant/Cross Respondent had incorporated his motion on notice filed on the 6th of November 2015 in his brief of argument.
There is a 2nd Respondent/Cross Appellant’s reply on points of law to Appellant’s/Cross Respondent’s Brief of Argument filed on the 29th of October, 2015.
In considering this Cross Appeal, we deem it pertinent to consider first the motions filed on the 6th of November 2015 as it affects the 2nd Respondent/Cross Appellant.
The Appellant/Respondent had, in that motion, sought an order striking out Grounds 3 and 4 of the Notice of Cross Appeal filed by the 2nd Respondent/Cross Appellant for incompetence, as well as the issues for determination formulated therefrom.
In paragraph 2.0 – 2.19 of the Appellant/Cross Respondent’s brief of argument in respect of the Cross Appeal filed by the 2nd Respondent, he had argued his preliminary points challenging the competence of Grounds of Cross Appeal.
They are in essence that
?(a) Ground 3 of the 2nd Respondent/Cross Appellant’s Notice of Cross Appeal is incompetent
and academic because there is no relief sought in the Notice of Cross Appeal.
That issue 2 formulated therefrom in the 2nd Respondent/Cross Appellant’s Brief of Argument filed on the 19th of October 2015 is incompetent.
(b) That Ground 4 of the Notice of Cross Appeal and its issue No. 3 – formulated therefrom are incompetent.
Ground 3 has this to say:
“The learned Judges of the lower Tribunal erred in law when they upheld the third Ground of the Appellant/Respondent in Support of the Petition as being valid and competent.”
Issue 2 which is formulated from this Ground 3 in the Cross Appellant’s Notice of Cross Appeal, is in paragraph 3.1 of the 2nd Respondent/Cross Appellant’s brief of argument.
It simply says:
“Was the Tribunal right in upholding the Appellant’s third Ground of petition?”
It is the contention of the Appellant/Cross Respondent that the Crux of the Cross/Appellant’s grievance in Ground 3 is that that Ground of the petition was incompetent and ought to be struck out.
As seen at page 2029 of the Record of Appeal Vol. II, the Tribunal struck out Grounds 2 and 3.
He argues that there was no relief sought in respect of Ground 3;
?Referring to page 2066 of the
Record of Appeal Vol. II, he states that no relief was sought in respect of Ground 3, in the Notice of Cross Appeal, and that to consider Ground 3 would amount to embarking on an academic exercise, and indeed an exercise in futility.
It is the case of the 2nd Respondent/Cross Appellant as argued in paragraph 4, 9, 2- 5.09 of his brief of argument, that Ground 3 of the Appellant’s Grounds of Petition was incompetent in law and ought to have been struck out by the Tribunal.
He argues that this ground is alien to the Electoral Act 2010 (as amended).
That, the Petitioner, in couching his Ground (III) used the phrase “majority of lawful and valid votes cast” instead of using the words “majority of lawful votes cast”.
That the addition of the phrase “and valid votes” is completely alien to the provisions of Section 138(1) of the Electoral Act 2010 (as amended).
With respect the word “VALID” is what is the problem here. But this could have been a typographical error, not intended. All that could have been done was to delete the word “valid” by way of even oral application to amend.
?Whatever the nomenclature used, there is no doubt that what would be considered by the
court, in the final analysis is what the law permits the courts to consider and determine within the ambit of the Electoral Law.
The consideration and determination of election petitions and attendant appeals, on a daily basis portends that time is of the essence. Therefore not every slip or typographical error, should be countenanced with such viciousness as to deal fatal blows on the petitions before court, which can defeat the very purpose why petitions are given a time limit to live.
It is not every error that the adverse party should capitalize on, to deal a fatal blow on his opponent. This of course is subject to the trite principle that so long as that error does not amount to overreaching the opponent or occasioning to him gross miscarriage of justice, it can be amended.
However, where a Statute stipulates a provision, which ex facie carries a mandatory force, the courts are rendered paralyzed to exercise any discretion in whatever guise to abort it.
?The provisions of the Electoral Act are, as it relates to Election Petitions SACROSANCT. Election petitions are sui generis. Hence the provisions of the Electoral Act 2010 (as amended), regulating all aspects
that relate to Petitions and Procedure at the Tribunals, including what must accompany a Petition remain SACROSANCT.
OKE v. MIMIKO (NO.1) 2014 1 NWLR. (pt.1388) 225;
KAKA v. DANIELS (2009) 14 NWLR (Pt.1161) 416 at 427.
Now, the 3rd Ground of Petition has this to say:
“Your Petition states that the 1st Respondent was not duly elected by a majority of LAWFUL AND VALID VOTES cast at the Governorship Election in Benue State held on the 11th day of April, 2015 and approved on the 13th day of April, 2015. However the Appellant/Cross Respondent in his Brief of Argument in respect of the Cross Appeal filed by the 2nd Respondent on the 23/10/2015 concedes in paragraph 2.4 thereof that the grouse ventilated in Ground 3 had in fact been resolved in favour of the Cross Appellant by the lower Tribunal.”
That indeed the lower Court had observed at page 2029 of the Record of Appeal that:
“…the Tribunal therefore finds that grounds two and three of the Petition are not supported by the facts therein and are hereby struck out as learned Senior Counsel to all the Respondents objections therein are being upheld…”
?He further argued that the above denies the Cross Appellant a right
to be an aggrieved party on appeal, in respect of this issue in Ground 3. He urges this Honourable Court to so hold citing ANATOGU v. ANATOGU (1998) 6 NWLR (Pt 552) 42.
We are poised to agreeing with the submission of the learned Senior Counsel, on this point.
Indeed, a cursory look at the relief sought by the 2nd Respondent/Cross Appellant as shown at page 2066 of Vol. III of the Record of Appeal depicts that it does not relate to Ground 3. This means that Ground 3 had indeed become academic because of the order earlier made regarding it by the lower Tribunal.
This Court will not act in vain or make an order in vacuo. Indeed decidedly Courts do not act in vain. ABE v. UNILORIN (2013) 16 NWLR (Pt 1379) pg. 183 at 204.
Accordingly, the objection to Ground 3 and issue 2 flowing therefrom is of no moment and same is hereby discountenanced.
What is Ground 4 of the 2nd Respondent Gross/Appellant’s Notice of Appeal. It says
‘The learned Judges of the lower Tribunal erred in law when they held at page 36 of their judgment that Exhibit P 16 which was signed by the petitioner, Rt. Hon. Prince Terhemen Tarzoor at the foot of the petition on paragraph 5 ends all the Respondent’s
objection on the signing of the petition are of no moment and hereby overruled.”
ISSUE NO. 3 which flows from this ground is
“Was the Tribunal right in law when it refused, failed or neglected to consider and rule on 2nd Respondent’s challenge to its jurisdiction on account of the issues raised by the Appellant bordering on alleged infringement of the consideration of the Federal Republic of Nigeria, 1999 as amended?
(Ground 4 of the Grounds of Cross Appeal).”
The Appellant/Cross Respondent had argued that Ground 4 of the Notice of Cross Appeal raises the issue as to the breach of the provision of Section 177 of the 1999 Constitution. That the cross/Appellant had argued on the merit that the Tribunal complied with Section 177 of the 1999 Constitution, in the election. The Tribunal resolved the interpretation of the said Section 177 of the Constitution in favour of the Cross Appellant. Simply put, the Cross Appellant conceded that the election complied with the provisions of Section 177 of the 1999 Constitution.
?This objection is misconceived and Ground No. 4 cannot be struck out. A fortiori Issue No. 3 formulated, and canvassed by the 2nd Respondent/Cross
Appellant in his brief of argument filed on the 19th of October 2015 is competent.
The totality is that the Notice of Cross Appeal is Competent. Save as regards Ground No.3.
MAIN CROSS APPEAL
The 2nd Respondent/Cross Appellant has proferred two (2) issues for determination in this Cross Appeal. Paragraph 3.0 pg. 2 of this brief of Argument.
ISSUE NO.1
1. Was the Tribunal right when, in dismissing the 2nd Respondent/Cross Appellant’s Motion challenging its jurisdiction, it held that res judicata did not apply to the petition and that the Appellant had locus standi to present the petition? (Grounds 1 and 2 of the Grounds of Cross-Appeal).
It is the 2nd Respondent/Cross Appellant’s case that the Tribunal was wrong in dismissing the 2nd Respondent/Cross Appellant’s Motion challenging its jurisdiction, and holding that res judicata did not apply to the Petition and that the Appellant had locus standi to present the petition.
He argued that in spite of the overwhelming state of pleadings and body of evidence, the Tribunal below found that the Petitioner was independent of the PDP with respect to the disputed Governorship election.
?That by Section 221 of the Constitution of
the Federal Republic of Nigeria 1999, individual candidacy is embargoed, and what affects a sponsoring political party affects the candidate it has sponsored.
That by Section 177(c) and 221 of the Constitution, the Appellant derives his title of being a candidate in the disputed governorship election from the PDP, which was the plaintiff in Exhibit R13. Therefore he submits the Appellant is privy to PDP.
He argued that in the present case, if the PDP had succeeded in nullifying the nomination of the 1st Respondent in Suit No. PHC/MKD/CS/09/2015 (EXHIBIT R13) the Appellant herein would have been the direct beneficiary thereof, since the PDP had sponsored him in the disputed election, referring to paragraphs 2 and 20(III) of the Petition, pages 1 and 5 respectively of Vol. I of the Record of Appeal.
He submits that the Appellant having pleaded suit No FHC/MKD/CS/09/2015 in paragraph 18(b) of his petition on page 4 of the Record of Appeal Vol. 1, that if an individual was content to stand by while his battle was fought and concluded by another in same interest, he must be and is bound by the result and should not be allowed to re-open the case, citing OKORIE
UWALAKA AND ORS v. UWALAKA AGBA AND ORS (1955) 15 WACA 63 at 63, HOYSTON v. THE COMMISSIONER OF TAXATION (1926) AC 155 at 165.
He submits that the Appellant in the instant case, subject matter of this appeal, having pleaded Suit NO. FHC/MKD/CS/09/2015 in paragraph 18(b) of his Petition on page 4, Vol.1 of the Record of Appeal, should be held to have been aware of it but to have chosen to stand by and watch the legal battle over the irregular nomination of the 1st Respondent being fought he should as a privy to PDP be held to be bound by the result of that legal battle.
He submits that a look at the “Concurrent Originating Summons” shows that the sole issue was that owing to his alleged improper nomination, the 1st Respondent herein was not qualified to contest as the Governorship candidate of the 2nd Respondent in the disputed Benue State Governorship Election.
That a look at the petition reveals the same complaints and pleadings.
?He submits that the Appellant cannot escape from the rule of res judicata. This is because the issues in both processes are the same. That even if there are slight changes in the issues which is not conceded, both suits are with
regard to the seat of the Governor of Benue State. Therefore he argues, res judicata ought to have been held to be applicable.
Submits that the Tribunal was in grave error when it held that the issues and reliefs in Exhibit R13 and the Petition now on Appeal were/are not the same. Urges this Court to hold that they are the same as both centre around the seat (Governor of Benue State as between the Appellant and the 1st Respondent).
He submits that the matter was dismissed at the Federal High Court and the decision was not appealed. It was a final decision at the Federal High Court.
He submits that the Tribunal had no right to review that decision. This is because the Federal High Court in Exhibit R15 had listened to arguments on whether or not evidence was led as to warrant a dismissal of the previous suit, but still dismissed it. The Tribunal was wrong to hold that that dismissal does not amount to laying to rest the issues in the matter, since it never got to the hearing stage.
?That the dismissal of the Suit NO. FHC/MKD/CS/9/2015 portends estoppel per rem judicata which applies to terminate this election petition filed as a result of the dismissal of that
previous Suit.
That at the point the Learned Counsel to the Plaintiff (PDP) applied to discontinue the Suit, issues had been joined and the Learned trial Judge having found that the Plaintiff had no case on the merits dismissed it.
That the dismissal of Suit NO. FHC/MKD/CS/9/2015 was a final decision of the Federal High Court.
On the issue of locus standi, he submits that it is only an aspirant in a party Primary that has locus standi to challenge the nomination of a particular candidate and not an outsider like the Appellant. He wonders why the Tribunal who also had taken this position, would dismiss the 2nd Respondent’s Motion on Notice which attacked the Appellant’s locus standi.
He submits that since it is not in dispute that the Appellant was not an aspirant under the APC, he lacked and still lacks, the locus standi to present the Petition.
Urges this Honourable Court to resolve issue No. 1 against the Appellant by holding, by reason of Res Judicata and lack of locus standi of the Appellant, that the Tribunal had no jurisdiction to entertain and determine the Petition on its merits.
?We are poised to agreeing with submission of the Appellants Cross/Respondent’s
submission on this issue that the Tribunal, having duly considered this issue, the arguments canvassed by parties and relevant authorities, it resolved that the circumstances surrounding the commencement and terminating of Suit FHC/MKD/CS/09/2015 do not present appropriate circumstance where the plea of res judicata can be invoked to truncate the Petitioner’s constitutional right to present this Petition.
Now, the Tribunal had held that the parties are evident, the reliefs sought are clear and the issues distinguishable in relation to Suit NO. FHC/CS/MKD/CS/9/2015.
In Suit No FHC/MKD/CS/9/2015, the parties therein are Peoples Democratic Party as Plaintiff and the All Progressive Congress as 1st defendant, DR. SAMUEL ORTOM as 2nd Defendant and the Independent National Electoral Commission as the 3rd defendant – pages 1541, of the Record of Appeal Vol. II.
?In the Petition, the subject matter of this appeal, the parties are Rt. Hon. Prince Terhemen Tarzoor as Petitioner, Ortom Samuel Ioraer as 1st Respondent, All Progressive Congress (APC) as 2nd Respondent and Independent National Electoral Commission (INEC) as 3rd Respondent.
?Therefore, it is evident that the
parties in the two suits are essentially the same.
In Suit NO. FHC/MKD/CS/9/2015, as reflected at page 788- 790 particularly at page 790 of the Record of Appeal Vol. l. the learned trial Judge of the Federal High Court ordered thus:
“This action was commenced by Originating Summons evidence in the affidavit filed by parties which the court can adopt or deem as adopted. This will thus mean that evidence has been led in this case. The best order to make here is one of dismissal. The Suit is thus consequently dismissed…”
Decidedly, a motley of authorities have pronounced on the word “DECISION” to mean in relation to a Court, any determination of the Court. -Section 318 of the 1999 Constitution (as amended).
The New Webster’s Dictionary of the English Language (International Edition) 261 defines it as a final decision by a court or administrate agency. OMISORE & ANOR v. AREGBESOLA & ORS 2015, (SC 204/2015).
A decision is a Court’s pronouncement and/or declaration which represents unequivocally, its final verdict of a question brought before it for determination- See BAMAIYI v. AG FEDERATION & ORS (2001) 7 SC (Pt 11) 62, EMORNI v. IGOKE (2011) 4 SC
(Pt 11) 107.
There is no doubt that the decision of the learned trial Judge in Suit NO. FHC/MKD/CS/9/2015 made on the 21st of May 2015 was a final decision. The Judge became fuctus officio after making the order as he did. There was no appeal on the order. It therefore subsists and cannot be relitigated.
The plaintiff in that suit is PEOPLES DEMOCRATIC PARTY. The Petitioner in paragraph 2 of his petition filed on the 29/4/2015 averred thus:
“Your Petitioner, Rt. Hon. prince Terhemen Tarzoor is a registered member of the Peoples Democratic party (PDP) and was a candidate in the above election on the platform of the Peoples Democratic party (PDP). A registered Political party in Nigeria”.
– Page 1 of the Record of Appeal Vol. l.
Being a registered member of the Peoples Democratic Party, does he have locus standi to bring the Petition, when it is not shown if he participated in the primaries? We think not.
The Tribunal was right in dismissing the Motion filed by the 2nd Respondent/cross Appellant’s Motion challenging its jurisdiction.
This issue is resolved in favour of the Appellant/Cross Respondent and against the 2nd Respondent/Cross Appellant.
ISSUE NO. 2
2. Was the
Tribunal right in upholding the Appellant’s third Ground of Petition? (Ground 3 of Grounds of Cross-Appeal).
The Appellant’s 3rd Ground of Petition can be gleaned from page 3 of the Record of Appeal Vol. l.
We shall safely reproduce same verbatim:
“Your Petitioner states that the 1st Respondent was not duly elected by a majority of lawful and valid votes cast at the Governorship Election in Benue State held on the 11th day of April 2015 and announced on the 13th day of April 2015.”
It is the argument of the 2nd Respondent/Cross-Appellant that even though this is so, his ground still raised the issue of lawfulness of votes cast.
The 2nd Respondent has objected to this Ground as seen at page 1615 – 1519 of the Record of Appeal. His ground of objection is that the provisions of Section 138(1)(c) of the Act which provides thus:
(c) That the respondent was not duly elected by majority of lawful votes at the election has been flouted because the petition had used the phrase “majority of lawful and valid votes cast” ?Refer to 2nd Respondent’s final address in opposing the petition.
?The provisions of the Electoral Law is decidedly SACROSANCT and should have been
complied with by the Petitioner. He did not amend his petition, even at the prehearing stage.
Ground III as couched is incompetent and we so order. Parties must adhere to the strict wordings in the Electoral Act in presenting their Petition and any infraction of these wordings in the Act, without amending same, will attract dire consequences on the part of the Petitioner in particular.
When at page 2029 of the Record of Appeal, Vol. II, the Tribunal ordered thus:
“It is not enough for Senior Counsel for the Petitioner to adamantly submit that the Petition is still relying on Grounds 2 and 3 when nothing useful has been argued in support of their competence before the Tribunal.”
It went on to observe thus that
“there seems to be deep gulf between the facts in support of those Grounds (i.e. Grounds 2 and 3) and the Grounds themselves, the Tribunal therefore finds that grounds two and three of the petition are not supported by the facts therein and are hereby struck out as learned Senior Counsel to all the Respondents objection thereon are hereby upheld.”
?It is therefore not true that the Tribunal upheld the 3rd Ground of Petition. To say so is a misconception. That
Ground was struck out by the Tribunal – page 2029 of the Record of Appeal – page 36 of the Judgment of the Tribunal. This issue is resolved in favour of the Appellant/Cross Respondent and against the 2nd Defendant/Cross Appellant.
ISSUE NO. 3
3. Was the Tribunal right in law when it refused, failed or neglected to consider and rule on 2nd Respondent’s challenge to its jurisdiction on account of the issues raised by the Appellant bordering on alleged infringement of the Constitution of the Federal Republic of Nigeria, 1999 as amended? (Ground 4 of Grounds of Cross-Appeal).
In his reply brief on points of law to Appellant/Cross Respondent’s brief of Argument filed on 23/10/2015 which reply brief was filed on the 29th of October 2015. -In paragraph 51 – page 15, the 2nd Respondent/Cross Appellant submits that:
“Less issue No. 3 framed by the Appellant which is conceded, they crave that all other issues in the cross-Appeal be resolved against the Appellant and in favour of the cross- Appellant.”
In the circumstances, Issue No. 3 is hereby struck out.
The result is that the Cross Appeal of the 2nd Respondent/Cross/Appellant is hereby dismissed.
That part of the
judgment whereby the Tribunal dismissed the Motion on Notice of the 2nd Respondent/Cross Appellant wherein the Tribunal’s jurisdiction was challenged is hereby set aside. Parties shall bear their respective Costs.
MAIN APPEAL
TANI YUSUF HASSAN, J.C.A.: I AGREE.
CROSS APPEAL BY THE 1ST RESPONDENT
TANI YUSUF HASSAN, J.C.A.: I AGREE.
CROSS APPEAL BY THE 2ND RESPONDENT
TANI YUSUF HASSAN, J.C.A.: I AGREE. ?
MAIN APPEAL
BITRUS GYARAZAMA SANGA, J.C.A.: I AGREE.
CROSS APPEAL BY THE 1ST RESPONDENT
BITRUS GYARAZAMA SANGA, J.C.A.: I AGREE.
CROSS APPEAL BY THE 2ND RESPONDENT
BITRUS GYARAZAMA SANGA, J.C.A.: I AGREE.
Appearances
Adebayo Adenipekun, SAN with him, Mrs. J.O. Adesina, SAN, Tunde Babalola, Esq, T.T. Hyundu, Esq, E.I. Jaren, Esq, G.I. Usongo, Esq, E.T. Ikyoive, Esq, S.M. Ian, Esq, P.N. Jooji Esq, T.D. Sorkaa, Esq, J.B. Ifer, Esq, Bamikole Aduloju, Esq, Chukwudi Maduka, Esq, Ademola Abimbola, Esq, F.T. Afanga, Esq, Oladayo Adewara, Esq, Jane Yagba (Mrs), M.T. Nyiutsa, Esq, Onaopemipo Owotumi, Esq.
?For Appellant
Chief Adeniyi Akintola, SAN, with him Mr. Israel Olorundare, SAN, Moses Atagher, Esq, A.T Ochojila, Esq, G.N. Gwebe, Esq, D.V. Zuanah, Esq, F.T. Uparegh, Esg, Iorcugh Igbaye, Esq, Omale Omale, Esq, F.T. Ajebe, Esq, Maureen N. Agbo, Esq, S.D. Swem, Esq, B.C. Abee, Esq, Msughter Alabar, Esq, Unum Maurice, Esq, Amina Balogun Miss, Christan Okoh Esq. For 1st Respondent
Sebastine T. Hon, SAN, FCIARB. With him, S.A. Ngavan, Esq., J.J. Igbabon, Esq, Tim Dim, Esq., F.A. Nomor, Esq., Oscar Aorabee, Peters Abaagu, Esq., T.M. Agboh, Esq, Daniel Penda, Esq, Manaseh Serki, Esq, J.I. Ioryina, Esq, J.I. Tyoapine, Esq, S.A. Akpehe, Esq.
For 2nd Respondent
Prof. A. A. Ijohor, SAN with him T.D. Pepe, Esq, T.T lgba, Esq, I.S. Kajo, Esq, F.T. Kusugh, Esq, D.D. Asema, Esq.
For 3rd Respondent
Appearances
Adebayo Adenipekun, SAN with him, Mrs. J. O. Adesina, SAN, Tunde Babalola, Esq, T.T. Hyundu, Esq, E.I. Jaren, Esq, G.I. Usongo, Esq, E.T. Ikyoive, Esq, S.M. Ian, Esq, P. N. Jooji Esq, T.D. Sorkaa, Esq, J.B. Ifer, Esq, Bamikole Aduloju, Esq., Chukwudi Maduka, Esq, Ademola Abimbola, Esq, F.T. Afanga, Esq, Oladayo Adewara, Esq, Jane Yagba (Mrs), M.T. Nyiutsa, Esq., Onaopemipo Owotumi, Esq.For Appellant
AND
Chief Adeniyi Akintola, SAN, with him Mr. Israel Olorundare, SAN, Moses Atagher, Esq, A.T. Ochojila, Esq., G.N. Gwebe, Esq, D.V. Zuanah, Esq., F.T. Uparegh, Esq, Iorcugh Igbaye, Esq, Omale Omale, Esq, F.T. Ajebe, Esq, Maureen N. Agbo, Esq., S.D. Swem, Esq, B.C. Abee, Esq, Msughter Ajabar, Esq, Unum Maurice, Esq, Amina Balogun Miss, Christian Okoh Esq. For 1st Respondent
Sebastine T. Hon. SAN, FCIARB. with him, S.A. Ngavan, Esq., J.J. Igbabon, Esq, Tim Dim, Esq., F.A. Nomor, Esq., Oscar Aorabee, Peters Abaagu, Esq., T.M. Agboh, Esq, Daniel Penda, Esq, Manaseh Serki, Esq, J.I. Ioryina, Esq, J.I. Tyoapine, Esq, S.A. Akpehe, Esq. For 2nd Respondent
Prof. A. A. Ijohor, SAN with him T.D. Pepe, Esq, T.T Igba, Esq, I.S. Kajo, Esq, F.T. Kusugh, Esq, D.D. Asema, Esq. For 3rd RespondentFor Respondent
