SHARTA BENJAMIN ELOHOR & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13847(CA)
In The Court of Appeal of Nigeria
On Saturday, the 9th day of November, 2019
CA/B/EPT/19/2019
RATIO
JUDICIAL DISCRETION: WHEN IT CAN BE SET ASIDE ON APPEAL
It is only when an exercise of discretion is steep in the whims and caprice of the judge with scant or no regards to the facts of the case that it is liable to be set aside on appeal. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143. See also Aboseldehyde Lab. Plc. V. U. M. B. Ltd. (2013) 13 NWLR (Pt. 1370) 91 @ pp. 97 ? 98; Aroh V. PDP(2013) 13 NWLR (Pt. 1371) 235; Thimnu V. UBN Plc. & Ors. (2013) LPELR 22127 (CA) @ pp. 20 ? 21. 20; Abiodun V. CJ, Kwara State (2007) 18 NWLR (pt. 1065) 109 @ p. 152; Adeniji V. Adeniji (2013) 15 NWLR (Pt. 1376) 102 @ p. 125. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUDICIAL DISCRETION: THE IMPORTANCE
Thus, going by its purpose and usefulness, it is a very vital tool in the due administration of justice and therefore, very importantly must not be exercised carelessly or arbitrarily or whimsically or radically or revolutionary with little or no regards to the facts and circumstances of the case. See Ajuwa V. SPDC Ltd. (2011) 18 NWLR (Pt. 1279) 787. See also Odusote V. Odusote (1971) All NLR 219; Olatubosun V. Texaco Nigeria Plc (2012) 14 NWLR (Pt. 1319) 200; Achi V. Ebenighe (2014) 4 NWLR (Pt. 1397) 380; Chief Ikechukwu V. Hon Tony Nwoye & Anor. (2014) 4 NWLR (Pt. 1397) 227 @ p. 239. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
WHEN THE APPELLATE COURT WILL INTERFERE IN THE DISCRETION OF THE TRIAL OR LOWER COURT
This is why it is now well settled in law that an appellate Court does not lightly interfere with the exercise of discretion of trial Courts and would do so only if it is shown that the trial Court has acted on some wrong principles of law or a misapprehension of the facts, in that the exercise is arbitrary or patently wrong. See Hon Justice Kalu Anyah V. African News Paper of Nigeria Ltd. (1992) 2 NWLR (Pt. 247) 319. See also Sonnar Nig. Ltd. V. Nordwind (1987) 1 NWLR (Pt. 66) 520. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
APPLICATION: THE FACT THAT A PARTY FAILS TO FILE A COUNTER AFFIDAVIT OR REPLY ON POINT OF LAW DOES NOT MEAN THE APPLICATION WILL BE AUTOMATICALLY GRANTED
In other words, it is not the law that once an adverse party fails to file a counter affidavit or even a reply on point of law, then ipso facto the application by the other party must automatically be granted. The Court is under a duty to consider such an application on its own merit and resolve it one way or the other and if such a consideration warrants its being granted or refused, then so be it! See Nabore Propertis V. Peace Cover Nig. Ltd 2015) 2 NWLR (Pt. 1443) 296. See also Lawal – Osula V UBA Plc (2003) 5 NWLR (Pt.813) 376. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
1. SHARTA BENJAMIN ELOHOR
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PETER OKAGBARE UMEJITOBOR
3. PEOPLES DEMOCRATIC PARTY Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment). This is an Appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Delta State, sitting in Asaba Delta State in Election Petition No. EPT/DT/SHA/18/2019: Sharta Benjamin Elohor & Anor V. Independent Hon Mathew Poko Opuoru & Ors, delivered on 11/9/2019, wherein the Appellants? Petition was dismissed for both being incompetent and lacking in merit.
The Appellants were peeved with the said judgment and had appealed against it to this Court vide their Notice of Appeal filed on 23/9/2019 at pages 787 -798 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 30/9/2019. The Appellants? brief was filed on 4/10/2019. The 1st Respondent?s brief was filed on 11/10/2019. The 2nd and 3rd Respondents? brief was filed on 10/10/2019. The Appellants? reply brief to the 1st Respondent?s brief was filed on 12/10/2019. The Appellants? reply brief to the 2nd and 3rd Respondents? brief was filed on 20/10/2019.
?At the hearing of this appeal on 4/11/2019, Habeeb
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Lawal Esq., learned counsel for the Appellants adopted the Appellants? brief and Appellants? reply briefs as their arguments and urged the Court allow the appeal and set aside the judgment of the Lower Tribunal. On their part, E. Ohwovoriole SAN, learned Senior Advocate for the 1st Respondent, appearing with I. T. Balogun Esq., I. Richards Esq., E. Omoregie Esq., and O. R. Alonge Esq., adopted the 1st Respondent?s brief as their arguments and urged the Court to dismiss the appeal and affirm the judgment of the Lower Tribunal. On their part, Dr. A. O. Giwa, learned counsel for the 2nd and 3rd Respondents, appearing with H. A. Agboloje Esq., E. C. Dick Esq., Rosemary Atoe Esq., and A. Akpogisheri Esq., adopted the 2nd and 3rd Respondents? brief as their arguments and urged the Court to dismiss the appeal and affirm the judgment of the Lower Tribunal.
By an Election Petition filed on 29/3/2019, the Appellants as Petitioners before the Lower Tribunal claimed against the Respondents the following reliefs, namely:
a. That it may be determined and thus determined that the 2nd Respondent was not duly elected or returned by the
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majority of lawful votes cast at the election into Udu State Constituency election held on the 9th day of March, 2019
b. That it may be determined and thus determined that the said election and the return of the 2nd Respondent as the winner of the election is void by acts which clearly violate and breach various provisions of the Electoral Act, 2010 (as amended) and Regulations and Guidelines issued by the 1st Respondent for the conduct of the election including but not limited to cancellation of election, over-Voting and manipulation of election results.
c. That it may be determined and thus determined that the results of the election in the Polling Units – Owhrode Grammar School, Owhroele II (Ward 2, Unit 2), Owhrode Grammar School, Owrhorle 1H (Ward 2, Unit 3), Ogbe-Udu Primary School, Ogbe-Udu (Ward 3, Unit 1), Ogbe-Udu Town Hall, Oge-Uelu (Ward 3,Unit 2). Ekreghele Town Hall, Ogbe-Udu (Ward 3, Unit 3), Ukpiovwin PrimarySchool, Ukpiovwin (Ward 3, Unit 6), Ukpiovwin Primary School, Ukpiovwin(Ward 3, Unit 7), Ukpiovwin Town Hall, Ukpiovwin (Ward 3, Unit 8), JehovahWitness Field, Ubogo (Ward 4, UnitI 3). Ekete Town Hall, Ekete Waterside (Ward
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6, Unit 2), Ekete Clinic, Ekete Waterside (Ward 6, Unit 3), EketeWaterside. Ekete Waterside (Ware! 6. Unit 4), Ujeku Primary School, Ujeku I (Ward 8, Unit 7), Orhuwhumn Primary School, Orhuwhumn (Ward 9, Unit 1), Orhuwhumn Primary School, Orhuwhumn 11 (Ward 9, Unit 2), African Church,Orhuwhumn (Ward 9, Unit 5), Okaka Hall I”. Orhuwhurun (Ward 9, Unit 6),Otebor Hall, Orhuwhumn (Ward 9. Unit 10) and Okolosi Hail, Orhuwhumn (Ward 9. Unit 17) be nullified for being unlawful.
d. That it may be determined that the purported election and return of the 2nd Respondent, as member of the Delta State House of Assembly for Udu State Constituency be nulli?ed and in its stead declaring as duly elected and returned the 1st Petitioner, as the member of the Delta State House of Assembly for Udu State Constituency having scored the majority of lawful votes cast at the said election of 9th March, 2019.
ALTERNATIVELY To a-d ABOVE
In addition and/or in the alternative, that the election be declared inconclusive and a supplementary election be held in affected Registration Area (Ward) and Polling Units where election did not hold and/or cancelled in line
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with the provisions of Electoral Act 2010 (as amended) and Regulations and Guidelines issued by the 1st Respondent for the election. In further alternative to (e) above, that fresh election be ordered throughout Udu State Constituency in accordance with the provisions of Electoral Act 2010 (as amended) and Regulations.
The grounds of the Appellants? Petition were that:
i. The 2nd Respondent was not duly elected by the majority of Lawful votes cast at the election.
ii. The election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2010 (as amended).
See pages 1-98 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
As can be garnered from the averments of the parties in their respective pleadings before the Lower Tribunal as well as the evidence, oral and documentary led, the relevant facts in this appeal are that the 1st Appellant contested for the seat of member of the Delta State House of Assembly for Udu State Constituency, under the platform of the 2nd Appellant (APC) in the Election conducted by the 1st Respondent on the 9/3/2019, with other candidates of other
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political parties, the 2nd Respondent who was sponsored by the 3rd Respondent (PDP) was declared by the 1st Respondent as winner of the Election. The Appellants dissatisfied with the result of the election ?led a Petition before the Lower Tribunal 29/3/2019, pursuant to Paragraph 3 of the 1st Schedule to the Electoral Act, 2010 (as amended). Upon service all the Respondents ?led their respective replies to the Appellants? Petition. See pages 102 – 288; 289 – 297; 298 – 435 of the Record of Appeal.
The 1st Respondent ?led two separate Motions on Notice on 29/5/2019 and 11/6/2019 raising preliminary grounds of objections to paragraphs of the Petition on grounds of incompetence, seeking to strike out certain paragraphs thereof. In response to the 1st Respondent?s motion of 29/5/2019 the Appellants orally replied on points of law but ?led a counter af?davit and a written address in respect of the motion on notice of 11/6/2019. The Lower Tribunal heard the applications but reserved its ruling on them till the ?nal Judgment. See pages 511 – 523; 524 – 528; 529 – 540; 649 – 651 of the Record of Appeal.
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In proof of their case, the Appellants, as Petitioners before the Lower Tribunal, called seven witnesses, including the 1st Appellant and tendered some exhibits. On their part, the 1st Respondent also called one witness, while the 2nd and 3rd Respondents did not call witnesses, but actively cross examined the Appellants? witnesses. At the close of their respective cases, the parties filed and exchanged their final written addresses, which were subsequently duly adopted by the counsel and on the parties adopted their final written addresses and on 11/9/2019, the Lower Tribunal delivered its judgment, wherein it considered the two motions filed by the 1st Respondent, and struck out the affected paragraphs of the Appellants? Petition complained of and ?nally the entire Appellants? Petition for being incompetent and also dismissed same for lacking in merit, hence this appeal by the Appellants against the said judgment. See pages 787 – 798 of the Record of Appeal
ISSUES FOR DETERMINATION
In the Appellants? brief, four issues were distilled as arising for determination in this appeal. In the 1st Respondent?s brief, four issues were distilled
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as arising for determination in this appeal. In the 2nd and 3rd Respondents? brief, two issues were distilled as arising for determination in this appeal. I have taken time to review the averments of the parties as well as the evidence, both oral and documentary led and considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Lower Tribunal, and it does appear to me that the proper issues for determination in this appeal are issues one , two and three as distilled in the Appellants? brief and issue four as distilled in the 1st Respondent?s brief, which best represent the real issues arising for determination in this appeal. In my view a consideration of these issues would involve the due consideration of all the two issues as distilled in the 2nd and 3rd Respondents? brief. I shall however, harmonize and consider issues two and three together. Let me proceed anon to consider these three issue ad seriatim!
ISSUE ONE
Whether the lower Tribunal judicially and judiciously exercised her discretion in granting leave to hear the 1st Respondent in respect
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of objections which were not incorporated into the 1st Respondent’s Reply to the Petition?
APPELLANTS? COUNSEL SUBMISSIONS
Learned counsel for the Appellants had submitted that notwithstanding the fact that the prayers of the 1st Respondent is that some paragraphs and the entire Petition be struck out for being incompetent, the Lower Tribunal made unchallenged and speci?c %
