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THE RT. HON. CHIEF DANIEL EFFIONG ASUQUO v. HON. MKPANAM OBO-BASSEY EKPO & ANOR (2019)

THE RT. HON. CHIEF DANIEL EFFIONG ASUQUO v. HON. MKPANAM OBO-BASSEY EKPO & ANOR

(2019)LCN/13706(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/C/265/2019

 

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

THE RT. HON. CHIEF DANIEL EFFIONG ASUQUO Appellant(s)

AND

1. HON. MKPANAM OBO-BASSEY EKPO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

RATIO

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

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

WHETHER OR NOT CONSTITUTIONAL RIGHT OF APEAL CAN BE TAKEN AWAY 

The law is also settled that a constitutional right of appeal cannot be taken away or denied an appellant. Thus, no Court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal.
In the light of the foregoing, D. D. Dodo, Esq., has not contravened any law to warrant denying the appellant engaging the services of counsel of his own choice to pursue this appeal. As regards the question whether this appeal is academic or not, the law is trite that a suit is academic if it is not related to practical situation of human nature and humanity. And a suit does not become academic simply because what gave rise to the action is concluded. See OYENEYE V ODUGBESAN (1972) 3SC 244, NWOCHA V GOV. ANAMBRA STATE (1984) 1 SCNLR 634 and DAHIRU V APC (Supra). PER SHUAIBU, J.C.A.

THE RIGHT TO INSTRUCT OR BRIEF ANY COUNSEL OF HIS CHOICE IN RESPECT OF AN ISSUE HE IS INVOLVED IN

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

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National and State Houses of Assembly Election Tribunal sitting at Calabar, Cross River State delivered on Thursday, 13th July, 2019 wherein the Lower Tribunal disqualified Ntufam Mba E. Ukweni, SAN, learned counsel for the appellant herein and any other counsel in his law firm from taking any further step in the proceedings on behalf of the appellant herein in petition No. EPT/CAL/HR/07/2019: Mkpanam Obo-Bassey Ekpo vs. Daniel Effiong Asuquo as other pending before the Lower Tribunal.

Miffed by the said ruling, appellant appealed to this Court vide a notice of appeal filed on 13th June, 2019. The notice of appeal contain four grounds of appeal at pages 504 ? 505 of the record of appeal.

?Upon the records of appeal being compiled and transmitted, the parties filed and exchanged briefs of argument. The extant briefs on which the appeal was argued are the appellant?s brief filed on 2/7/2019. 1st respondent?s brief incorporating preliminary objection filed on 8/7/2019 as well as the appellant?s reply brief filed

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on 12/7/2019. The 2nd respondent did not file any brief and therefore shall not be heard on this appeal.

The appellant distilled three issues for determination as follows:
1. Whether the hearing and determination of the 1st respondent?s motion outside the pre-hearing session and without leave of the Tribunal to do so did not amount to a contravention of the mandatory provision of Paragraph 47 (1) of the First Schedule to the Electoral Act, 2010 (as amended) and thus render the entire proceedings and the decision that arose therefore a nullity?
2. Whether the decision of the National and State Houses Election Tribunal disqualifying Ntufam Mba E. Ukweni, SAN and all counsel in his chambers from representing the appellant herein in petition No. EPT/CAL/HR/07/2019 on account of conflict of interest and on ground of his appearance for the All Progressives Congress, APC in Appeal No. CA/C/62/2019 and CA/C/70/2019, which decision/order was made to apply to petition No. EPT/CAL/HR/07/2019 is not a misapplication of the decisions in Onigbongbo Community vs Minister of Labour Affairs and Ors (1971) 1 NILR 235 (1971) 1 NSCC 186 and, Chief Ikenna Egbuna vs Mr. Alexander Agha ?

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(2015) 2 LPELR ? 2588 (CA)? (Distilled from grounds 2 and 4).
3. Whether learned Justices of the Election Tribunal gave a due and dispassionate consideration to all issues of law and facts duly raised and placed before them in their ruling on the 1st respondent?s motion? (Distilled from ground 3).

The 1st respondent adopts all the three issues formulated by the appellant. In addition, he filed a notice of preliminary objection challenging the competence of the appeal.

Arguing issue number one, learned counsel for the appellant Ntufam Mba E. Ukweni, SAN submitted that the entire proceedings leading to the hearing of the petitioner?s motion as well as the order disqualifying Ntufam Mba E. Ukweni, SAN are a nullity same having ignored the mandatory requirements of Paragraph 47 (1) of the First Schedule to the Electoral Act, 2010 (as amended).

Still in argument, learned counsel submitted that any order made on an incompetent motion such order is invalid and a nullity which ought to be set aside relying on the authorities in the cases ofSANUSI  V AYOOLA (1992) 9 NWLR (pt

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265) 275 at 293 and OTU V A. C. B. INTERNATIONAL BANK PLC (2008) 3 NWLR (pt 1073) 179 at 197 ? 198.

On the part of the 1st respondent, learned Ikoro N. A. Ikoro contends that the fact that First Schedule to the extant Electoral Act does not give direction on how a respondent should questioned non-compliance, recourse must be heard to paragraph 54 which directs that the Federal High Court Rules 2009 shall apply. He further submitted that the appellant having taken further steps in the matter, it is too late in the day to turn round and challenge the competence of the 1st respondent?s motion. He referred to UDE V NWARA (1993) 2 NWLR (pt 278) 638 at 662 ? 663.

It was also submitted on behalf of the 1st respondent that the lower Tribunal having told the 1st respondent to proceed with his motion impliedly means that the required leave was thereby granted. And that the failure to comply with any provision of the First Schedule to the Electoral Act is a mere irregularity that does not affect jurisdiction of the lower Tribunal. He referred to ABUBAKAR V DANKWAMBO (2015) LPELR ? 25698 and INEC  V  MBAWIKE & ORS

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(2017) LPELR ? 41623.
?
On issues Nos two and three, learned counsel for the appellant contended that the lower Tribunal was clearly in error to have considered the previous cases in Appeal Nos CA/C/62/2019 and CA/C/70/2019 as pre-election cases having regards to exhibits MEU-2-MEU-5 attached to the appellant?s counter ? affidavit. He thus submitted that the lower Tribunal abdicated its responsibility by not examining those exhibits and giving them due appraisal. And that failure according to the learned counsel had occasioned a miscarriage of justice. He referred to WAKILI  V BUBA (2016) 13 NWLR (pt 1529) 303 at 346 and EZECHUKWU V ONWUKA (2016) 5 NWLR 9pt 1506) 529 at 553.

It was also submitted that the appearance of Ntufam Mba E. Ukweni, SAN for All Progressives Congress, APC in appeals Nos. CA/C/62/2019 and CA/C/70/2019 does not amount to conflict of interest and or any breach of the provisions of the rules of Professional Conduct of Legal Practitioners 2007. He thus argued that the lower Tribunal overstretched the law while relying on the decisions in

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Onigbongbo Community  v  Minister of Lagos Affairs and Egbuna  V Agha (supras) in barring Ntufam Mba E. Ukweni, SAN from representing the appellant herein in the petition before it. The said decisions according to the learned counsel supports the case of the appellant and this Court was urged to apply the said principle with full force in allowing this appeal.

Learned counsel drew a distinction between a pre-election and post election disputes and argued that vide Exhibits MEU-2 ? MEU-5, that Appeals Nos. CA/C/62/2019 and CA/C/70/2019 are disputes relating to congresses of the All Progressives Congress (APC) as a political party while the case culminating to this appeal is a post ? election dispute. He referred to DICKSON  V  SYLVA (2017) 10 NWLR (pt 1573) 299.

On these issues, learned counsel for the 1st respondent submitted that Mr. Ukweni, SAN having secured personal knowledge of confidential facts as lead counsel for All Progressives Congress in Appeals Nos. CA/C/62/2019 and CA/C/70/2019, he ought to be restrained from causing harm to the petitioner. He referred to ONIGBONGBO COMMUNITY  V MINISTER OF LAGOS AFFAIRS

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(Supra) and OJO  V ROTIFA (1981) 209.SHC 312.

I have stated elsewhere in this judgment that the 1st respondent has filed a notice of preliminary objection and the logical starting point in resolving this appeal is certainly the determination of the 1st respondent?s preliminary objection. The grounds upon which the said preliminary objection is predicated are as follows: –
(a) The Notice of Appeal and Brief of Argument emanated from Damian, D. Dodo, Esq. SAN who had instructions of All Progressives Congress (APC) to vindicate the right of the 1st Respondent as evidenced at page 207 of the Record of Appeal
(b) An Appeal is a continuation of hearing from a lower Court/Tribunal and the subject matter of the petition at the Trial Tribunal relates to Orders for status quo and motion for stay of Execution in Appeals Nos CA/C/62/2019 and CA/C/70/2019 of which the learned Senior Advocate Damian D. Dodo, SAN was briefed as counsel and also appeared as counsel.
(c) The involvement of D.D. Dodo SAN constitutes conflict of interest having regard to the fact the instant appeal is a continuation of hearing of PETITION NO

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EPT/CAL/HR/07/2019.
2. The appeal is academic as the hearing in the petition having been concluded.
Proffering argument on the above learned counsel for the 1st respondent contended that the petitioner/1st respondent is a member of All Progressives Congress (APC) and whose name was submitted to the 2nd respondent as a candidate for the party but, whose name was delisted and hence D. D. Dodo, SAN was instructed to vindicate their candidature. Also having lend his voice to the submission of Awa Kalu in urging this court to grant stay in appeals Nos. CA/C/62/2019 and CA/C/70/2019, D. D. Dodo, SAN should be estopped from doing any act that is contrary to the duty he hitherto owed the 1st respondent. He referred to Rules 17 and 21 of the Rules of Professional Conduct of Legal Practitioners in Nigeria.

Replying the preliminary objection, learned counsel for the appellant argued that an aggrieved party has the right to challenge by way an appeal any decision made against him and even where such party is in contempt of Court. He thus submitted that neither Ntufam Mba E. Ukweni, SAN nor D. D. Dodo, SAN can be estopped from pursuing this appeal on behalf

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of the appellant. He referred toHUANG V BELLO (1990) 6 NWLR (pt 159) 671 at 678.

In further contention, learned counsel submitted that the petition is still pending as same was adjourned from 13/7/2019 to 15/7/2019 for continuation of hearing. And that a suit does not become academic simply because what gave rise to the action is concluded. He referred to DAHIRU V APC (2017) 4 NWLR (pt. 1555) 218.

The provenance of the instant appeal is the refusal of audience to Ntufam Mba E. Ukweni, SAN at the lower Tribunal in petition No. EPT/CAL/HR/07/2019 on ground of conflict of interest.
?The law is settled that an appellant who exercises his constitutional right of appeal is not thereby restrained. Thus, where a party is appealing against a matter in which he had suffered defeat and asked for a stay of execution pending appeal he would not be held for contempt merely because he had not obeyed the order which he is appealing against or which he want stayed pending appeal. In other words, the refusal of right of audience to a counsel does not operate to restrict the constitutional right of a party to appeal against the

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decision by a counsel of his choice. See ADAMA V MAIGARI (2019) 3 NWLR (pt 1658) 26.
In the instant case, the lower Tribunal restrained Ntufam Mba E. Ukweni, SAN from representing the appellant and likewise, the 1st respondent is now seeking to extend that restriction to D. D. Dodo, SAN on the premise that he took part in appeals No. CA/C/62/2019 and CA/C/70/2019 and also signed the extent grounds of appeal. However, the appellant on whose behalf both Ukweni, SAN and Dodo SAN represents, is simply exercising his constitutional right of appeal. And in so far as the appellant has a right to engage a counsel of his choice; a refusal of a right of audience to that counsel as in this case would operate to restrict that constitutional right. This is more so, when that right of counsel of party?s own choice coincide with constitutional right of appeal. The law is also settled that a constitutional right of appeal cannot be taken away or denied an appellant. Thus, no Court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal.
In the light of the foregoing, D. D. Dodo, Esq., has not

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contravened any law to warrant denying the appellant engaging the services of counsel of his own choice to pursue this appeal.

As regards the question whether this appeal is academic or not, the law is trite that a suit is academic if it is not related to practical situation of human nature and humanity. And a suit does not become academic simply because what gave rise to the action is concluded. See OYENEYE V ODUGBESAN (1972) 3SC 244, NWOCHA V GOV. ANAMBRA STATE (1984) 1 SCNLR 634 and DAHIRU V APC (Supra).

In the instant case, hearing in the petition No. EPT/CAL/07/2019 is on-going and same cannot be academic or hypothetical as wrongly assumed by learned counsel for the 1st respondent.

By and large, the 1st respondent?s preliminary objection to the hearing of this appeal is moribund and same is accordingly overruled.

Turning back to the argument of learned counsel on the substantive appeal, the appellant?s main grouse centred on the failure of the lower Tribunal to comply with mandatory requirement of Paragraph 47 (1) of the First Schedule to the Electoral Act 2010 (as amended).

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The said Paragraph 47 (1) of the extant Electoral Act deals with hearing of motions and applications. It provides as follows:-
?No motions shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.?
Thus, the conditions precedent for bringing any motion outside pre-hearing session are:-
(a) That the circumstances for bringing the motion must be of extreme nature and
(b) It must be with leave of Court first sought and obtained.
It is beyond any pre-adventure that the motion in question was moved and granted prior to the date fixed for pre-hearing session. In fact, it was after the delivery of the ruling now on appeal that the lower Tribunal adjourned the petition to 20/6/2019 and fixed pre-hearing to commence at 1 p.m. See page 460 of the record of appeal. A perusal of the record of appeal also did not indicate the extreme circumstances of bringing the said motion by the 1st respondent. Worst still, no leave of the lower Tribunal was first sought and obtained.
?Where legislation lays down a procedure for doing a thing, there should be no

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other method of doing it. In this case, there is a clear departure from the procedure laid down in paragraph 47 (1) of the extant Electoral Act and this failure affects the props and foundation of the said motion. The law is that where leave is required either in the Constitution or in the Rules of Court before filing a motion and leave is not sought and granted, the Court has no jurisdiction to grant the motion and so also the order on such incompetent motion is invalid. SeeOTU V A.C.B. INTERNATIONAL BANK PLC (2008) 3 NWLR (pt 1073) 179, U.T. B. V ODOFIN (2001) 8 NWLR (pt 715) 296 and REAN PLC V ANUMNU (2003)6 NWLR (pt 815) 52.
In this case, the failure to demonstrate the extreme circumstances for and also to bring the motion without obtaining the requisite leave of the lower Tribunal rendered the 1st respondent?s motion of 20/5/2019 incompetent and I so hold. Invariably too, the lower Tribunal acted without jurisdiction when it entertained the said motion.
?
The fuss on issues Nos. 2 and 3 seems to be largely on the disqualification of Ntufam Mba E. Ukweni, SAN and all counsel in his chambers

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from representing the appellant at the lower Tribunal in petition No. EPT/CAL/HR/07/2019 on account of conflict of interest arising from his previous appearance for All Progressives Congress (APC) in Appeals Nos CA/C/62/2019 and CA/C/70/2019. In its ruling, the lower Tribunal found at pages 464 ? 465 of the record of appeal thus:
?It is not in dispute that what calls for determination in this petition is the action taken by the 2nd Respondent herein consequent upon the decision of the Court in respect of the various pre-election cases which the petitioner contends led to his cause of action in this petition. In effect, this petition flowed directly from the pre-election cases, and the learned senior counsel for the 1st respondent actively participated in the said cases on behalf of the petitioner?s party and invariably on behalf of the petitioner. It is a trite principle of law that the learned silk for the 1st respondent cannot approbate and reprobate at the same time.?

?The general principle is that every person in Nigeria has a right to instruct or brief any counsel of his choice in respect of any issue, matter or case,

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he is involved in. Inherent in this right is the power of the citizen to change his counsel as he desires at any stage of the issue, matter or case without giving any reason for doing so, and to engage as many firms as he can afford to represent him. This right is clearly implicit in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also OKODUWA V STATE(1988) 2 NWLR (pt. 76) 333, UKWENI V GOV. CROSS RIVER STATE (2008)3 NWLR (pt 1073) 33 and UNITY BANK PLC V OLATUNJI (2015) 5 NWLR (pt 1452) 203 at 236 ? 237.
Although, courts lacks the power to prevent litigants from employing the services of counsel of their own choice, a person must not be allowed to employ the services of counsel where it is clear that the services to be rendered flows out of or are closely related with the previous services he had rendered to the opposing side. The counsel on his own part has a corresponding duty not to accept a brief that flows or is closely related to his previous brief. In other words, the jurisdiction to restrain counsel from acting for the antagonist of his former client

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stems from the principle that a man ought to be restrained from doing any act contrary to the duty he owes another. ANATOGU V IWEKA II (1995) 8 NWLR (pt 415) 547 and ONIGBONGBO COMMUNITY V MINISTER OF LAGOS AFFAIRS (Supra).
The rules of professional conduct of legal practitioners also frowns at conflict of interest being an antidote of lawyer and client confidentiality. Rule 19 for instance sets out the type of communication with the client which the lawyer may or may not reveal. However, it is wrong to suggest that counsel may not act against someone whom he acted for in a matter bearing no resemblance to the present case. This is the position taken by the apex Court in Nigeria in the case of ONIGBONGBO COMMUNITY V MINISTER OF LAGOS AFFAIRS (Supra) that since the counsel in question had led in a former appeal for the appellant purely on question of title to land, there was nothing wrong in his appearing for the other side in subsequent proceedings between the two parties to settle compensation claims for the same land.
?
I am persuaded by the submission of the learned counsel to the appellant that the responsibility

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of showing conflict of interest as represented by Mr. Ukweni, SAN lies squarely on the petitioner at the lower Court. On his part the appellant as 1st respondent has averred in paragraphs 7 ? 21 of the counter affidavit to the petitioner?s motion to disqualify Ntufam Mba E. Ukweni, SAN from taking any further step in the petition at pages 211 ? 214 of the record of appeal as follows:-
7. I have carefully gone through the motion and the processes supporting it. I am surprise that the Petitioner and his counsel, did not attach copies of the processes in those earlier cases which they are saying I handled for the Petitioner herein that are in conflict with the instant petition.
8. I do not dispute paragraphs 1, 2, 3 and 4 of the affidavit in support of the motion deposed to by my learned friend, Chuka Obidike, but I maintain in answer to paragraphs 5 and 6 thereof that, I held the brief of Mr. Damian D. Dodo, SAN, learned Senior Counsel for the all Progressives Congress in those matters and Mr. Chuka Obidike is fully aware of that fact. I have a copy of the letter of instruction given to Mr. D. D. Dodo, SAN by comrade Adams

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Oshiomole, National Chairman of the all Progressives Congress to handle Appeal No. CA/C/70/2019. It is hereto attached and marked EXHIBIT MEU-1.
9. Paragraph 7 of the supporting affidavit is not wholly true, and I hereby deny it to the extent of its incorrectness. Those appeals arose from the judgment of the Federal High Court, Calabar Judicial Division in Suit No. FHC/CA/CS/73/2018: Hon. Godwin Etim John & Ors v. all Progressives Congress & 3 Ors which was decided by His Lordship, The Honourable Justice s. A. Amobeda on Monday, the 11th day of February, 2019.
10. Those matters, including the appeals mentioned in paragraph 7 of the supporting affidavit of Chuka Obidike dealt with issues touching on the internal leadership crisis within the APC in Cross River State. They are disputes that arose from the Wards, Local government Areas and State congresses of the APC in Cross River State held on the 11th,k 12th, 15th, 16th and 18th days of May, 2018. On the other hand, the instant petition is a fallout of the 2019 General elections conducted by the 2nd respondent herein. It is the Petitioner?s challenge of the 2nd Respondent?s

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declaration of the 1st Respondent as the winner of the election. It has nothing to do with the Congresses of the APC or which of the two Factions of the APC in the state should present candidates for the Party.
11. The claim before the Federal high Court, Calabar Judicial Division in Suit No. FHC/CA/CSD/73/2018 was the enforcement of the judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/BW/CV/106/2018: Mr. Sylvester Okpo & 2 Ors v. all Progressives Congress delivered by His Lordship, Hon. Justice O. A. Musa on Thursday, the 20th day of September, 2018 in respect of the dispute in the Cross River State Chapter of the all Progressives Congress as to who amongst the parties therein were the properly elected Wards, Local government Areas and State Executive Committee members of the All Progressives Congress in Cross River State.
?12. It was an internal or intra party dispute relating to the Wards, Local Government Areas and State congresses, not even the Party primaries of the all Progressives Congress in Cross River State. The main grievance and contention of the Appellants in Appeal Nos. CA/C/62/2019

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and CA/C/70/2019 was because the Judge of the Federal High Court, Calabar, S. A. Amobeda, J, went outside the issues/claims before him to make pronouncements enumerated in paragraph 9 of the supporting affidavit or what His Lordship called ?consequential orders?.
13. The consequential orders removed all the candidates of the All Progressive Congress in Cross River State nominated for the elections, which were not the issues before the Court. In fact, that was one of the major reasons why the judgment of the Federal High Court was set aside by the Court of Appeal. I have copies of the judgments and orders of:
i) The High Court of the Federal Capital Territory, Abuja in Suit No. FHC/HC/BW/CV/106/2018.
ii) The Federal High Court, Calabar, in Suit No. FHC/CA/CS/73/2018;
iii) The Court of Appeal, Calabar Judicial Division in appeal Nos. CA/C/62/2019 and CA/C/70/2019.
They are hereto attached and marked EXHIBITS MEU-2,2A,3,3A,4 and 5 respectively.
14. I have personally gone through those judgments and the proceedings in those matters which are quite bulky and cumbersome to attached hereto and I know as a fact that

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the dispute in those cases are different from that in the instant Petition No. EPT/CA/HR/08/2019, where the Petitioner herein is complaining of being excluded by the 2nd Respondent herein from participating in the House of Representatives election of Saturday, the 23rd day of February, 2019.
15. My answer to paragraphs 10 and 11 of the supporting affidavit of Mr. Chuka Obidike is that both the parties in those cases, the lawyers who represented the parties and the subject matter in dispute in those cases including the consequential orders made by Amobeda J. in Suit No. FHC/CA/CS/73/2019 are not the same with the issues in the instant petition. The issues are distinct from what is in contention in this petition.
16. I was not counsel to the Petitioner in this petition in those appeals and I received no instruction from him to represent his interest in those cases. He has no interest in those cases that is now considered to be in conflict with the instant matter. The 1st Respondent was not a party to those cases which were purely domestic disputes of the APC members as to who will control their party structure in Cross River State.

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17. The 1st Respondent and I are card carrying members of the Peoples Democratic Party, PDP. He was the candidate of PDP and not APC. The 1st Respondent did not contest for any of the positions that were in contention in those cases. He was not a party to those cases. I am at a lost on how the internal disputes of the APC arising from their congresses and primary elections in the State, which the 1st respondent did not contest, will be an issue in this petition. Again, I do not see how my appearance for the APC in those appeals amount to conflict of interest in an election petition, which I know as a fact, is a post-election and inter-dispute, challenging the election and return of the 1st Respondent, the candidate of the PDP by the 2nd Respondent, the umpire in the election.
18. In specific answer to paragraph 11 of the supporting affidavit of Chuka Obidike, I state that I was not the one that represented the interest of litigants who were candidates of the APC in Cross River Sate in those appeals. It was learned Senior Counsel to the Petitioner herein, Awa U. Kalu, SAN, FNIALS who represented the interest of those class of litigants in Appeal NO.

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CA/C/62/2019. He applied on their behalf to appeal against the judgment of Amobeda, J. as interested parties.
19. I have neither represented nor acted for the Petitioner herein in any case; including the aforementioned cases. Instead, I have always represented the Peoples Democratic Party and its candidates, particularly the 1st Respondent herein in the various election petitions filed against them. In the year, 2015, we did many petitions and the appeals arising from on behalf of the 1st Respondent herein and our party, the PDP. Among them were:
i) Petition No. EPT/CR/NA/13/2015: Hon. Victor Ikpeme & Anor v. Ntufam (Hon.) Etta Mbora & 5 Ors.
ii) CA/C/NAEA/156/2015: All Progressive Congress, APC V Ntufam (Hon.) Etta Mbora & 5 Ors.
iii) CA/C/NAEA/171/2015: Ntufam (Hon.) Etta Mbora &n 5 Ors vs. Hon. Victor Ikpeme & Ors.
iv) EPT/CR/NAEA/216/2015: Barr. Eyo Nsa Ekpo & Anor vs. Hon. Victor Ikpeme & 5 Ors.
v) CA/C/NAEA/219/2015: Hon. Victor Ikpeme & Anor v. Ntufam (Hon.) Etta Mbora & 5 Ors.
20. It is not correct as stated by Mr. Obidike in paragraph 12 of the supporting affidavit

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that I received instructions in the course of prosecuting Appeal Nos. CA/C/62/2019 and CA/C/70/2019 by which I secured first-hand knowledge of confidential information by virtue of my position as the Petitioner?s counsel, which I now seek to deploy against the Petitioner and in favour of the 1st Respondent. The Petitioner has never briefed me to do a case for him from where I could secure confidential information to use against him. I did not secure any confidential information in those appeals that can be used against the Petitioner in this petition. I have not done that before and I will never do it.
21. I recognize my solemn duty to my clients as a Legal Practitioner as stated by Mr. Chuka Obidike in paragraph 13 of his affidavit in support of the motion. His postulation therein is not applicable in the instant case. I did not receive any instruction from him which I have used or likely to be used against him in this petition. The 1st respondent and his company, Doveline Nig. Limited, have general legal retainer-ship with our law firm, Mba E. Ukweni & Associates.

The lower Tribunal on its part found at page 462 of the record

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of appeal thus:-
?To the Affidavit the 1st respondent filed a counter affidavit deposed to by the learned silk himself, Mba Ekpezu Ukweni, Esq. SAN. By the 22 paragraph counter affidavit the learned silk labored to show why this application should not be granted. Voluminous documents were attached to the counter Affidavit as exhibits.”

Discerning from the above, the lower Tribunal did not appraise, evaluate and fix any value to the evidence placed before it by the appellant herein. Nothing has been said about the voluminous exhibits attached to the counter affidavit. A document attached to an affidavit as an exhibit forms part of the affidavit, and any person who is entitled to inspect the affidavit has a right to demand an inspection of the exhibit being an integral part of the affidavit. And where a material facts in a counter affidavit not denied by a reply affidavit are the true position as depositions in an affidavit on material facts resolve applications in Court. See AKITI V OYEKUNLE (2018) 8 NWLR (pt 1620) 182.

The evaluation of evidence is primarily the exclusive preserve of the trial Court but where the

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trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in perverse conclusion, the appellate Court has a duty to re-assess and evaluate the evidence in order to reach a just conclusion. See OGUNLEYE V ONI (1990) 2 NWLR (pt 135) 743, IWUOHA V NIPOST LTD (2003) 8 NWLR (pt 822) 308; EZEUKO V STATE (2016) 6 NWLR (pt 1509) 529 and ARIJE V ARIJE (2018) 16 NWLR (pt 1644) 67 at 83 ? 84.

In the instant case, the lower Tribunal clearly abdicated its responsibility by not evaluating the evidence presented by the appellant herein. Had the lower Tribunal appraise, evaluate and fix the appropriate probative value to the said evidence particularly Exhibits MEU-2 ? MEU-5, it would have come to right conclusion that Appeals No. CA/C/62/2019 and CA/C/70/2019 relates to intra-party disputes and not pre-election disputes. Intra-party dispute is a dispute between a member or members on one hand or and the party on the other hand. See DAHIRU V APC (2017) 4 NWLR (pt 1555) 218.

However, pre-election denotes to a preliminary

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election where delegates or nominees are chosen. In the con of Section 87 (9) of the extant electoral Act, a dispute is a pre-election dispute where ?
(a) A disputant is an aspirant who participated in primary election of his political party, and
(b) The complaint arises from non-compliance with the party?s Constitution and guidelines and /or the provisions of the Electoral Act.
SeeUGWU V PDP (2015) 7 NWLR (pt 1459) 478, PDP V SYLVA (2012) 13 NWLR (pt 1316) 85. APGA V ANYANWU (2014) 7 NWLR (pt 1407) 541 PDP V EZEONWUKA (2018) 3 NWLR (pt 1606) 187 and ODUAH  V OKADIGBO (2019) 3 NWLR (pt 1660) 433.

In this case what was before the lower Tribunal is neither an intra-party dispute nor pre-election dispute but a post election dispute questioning the undue return and undue election of the 1st respondent herein within the contemplation of Section 133 of the Electoral Act 2010 (as amended). It is thus clear that the 1st respondent herein was not a party to the previous Appeals No CA/C/62/2019 and CA/C/70/2019 and did not engage the services of Ntufam Mba

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E. Ukweni, SAN. And since the services rendered by the said counsel did not flows out of and or closely related with the previous cases, the learned counsel Ntufam Mba E. Ukweni, SAN and all other counsel in his firm were unjustly disqualified from representing the appellant in the petition No EPT/CAL/HR/07/2019 before the lower Tribunal.

In the result, the appeal succeeds and it is hereby allowed. The 1st respondent?s motion filed on 20/5/2019 is hereby struck out for being incompetent. I make no order as to costs.

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

I agree with my learned brother that the preliminary objection raised by the 1st Respondent lacks merit and I too dismiss the 1st Respondent’s preliminary Objection.

I also agree with the reasoning and conclusion in the lead judgment that the main appeal is meritorious. I also allow the appeal.

I abide with the consequential Order and the Order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in

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advance, the erudite leading judgment delivered by my learned brother; Muhammed L. Shuaibu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, allow the appeal. I strike out the first respondent’s motion, which mothered the appeal, for being incompetent. I abide by the consequential orders decreed in the leading judgment.

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Appearances:

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

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

 

Appearances

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

 

AND

Ikoro N.A. Ikoro, Esq.For Respondent