USANI UGURU USANI v. DONALD DUKE & ORS.(2005)

USANI UGURU USANI v. DONALD DUKE & ORS.

(2005)LCN/1861(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of December, 2005

CA/C/CRS/GOV/EPA/61/2005

RATIO

APPEAL: WHETHER THE FAILURE OR NEGLECT OF A PARTY TO SUBMIT HIS CASE FOR CONSIDERATION MEANS ABANDONMENT OF HIS CASE

This court has pointed out in Onwuren v. Modern Sugar Nig. Ltd. (supra), that a party who has failed or neglected to submit his case for consideration cannot complain of a denial of hearing. The failure to or neglect per se tantamounts to an abandonment of the appeal.” Applying this principle as enunciated above in this case, when the appellant and his counsel failed to appear in court to prosecute the case, for whatever reason, they are deemed to have abandoned the case and they cannot thereafter complain of breaching of a nonexistent right to fair hearing. A right not earned cannot be exercised. PER MUNTAKA-COOMASSIE, J.C.A.

ELECTORAL MATTERS: WHAT IS LEGAL POSITION OF BIAS IN RELATION TO A COURT OR TRIBUNAL

On the issue of bias as raised by the appellant’s Counsel, I will refer to the recent decision of the Supreme Court in the case of Okacets Azuokwu v. Tasie Nwokanma & Anor. (2005) 11 NWLR (Pt. 937) 537 at 551; (2005) 5 SCNJ 192 at 202 – 203 where Kalgo JSC stated the legal position thus: ‘Bias, in relation to a court or tribunal, is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so, towards or involving a particular party in a case. Also, in a case where bias is being alleged against a court or Judge, it is not the real likelihood that the court or Judge could or did favour one side at the expense of the other that is important, it is that any person looking at what the court or Judge has done, will have the impression in the circumstances of the case, that there was real likelihood of bias.” See also the following cases: 1. Metropolitan Properties Co. Ltd. (F.G.C.) v. Lannon (1969) 1 QB. 577; 2. Olue & Ors. v. Enenwali & Ors. (1976) 2 SC. 23; and 3. Kenon and Ors. v. Tekam & Ors. (2001) 14 NWLR (Pt.732) 12; (2001) 7 SCNJ 620 at 634 -633.PER MUNTAKA-COOMASSIE, J.C.A.

JUSTICES

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

Between

USANI UGURU USANI – Appellant(s)

AND

DONALD DUKE & 23 ORS – Respondent(s)

MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): I must admit painfully that this matter has suffered a terrible chequered history. The case was twice before the National Assembly/Governorship and Legislative Houses Election Tribunal Calabar. This is also the second time the matter is coming before the Court of Appeal.

It goes like this: There was an election petition in respect of the National Assembly/Governorship and Legislative Houses Election pending. The petition was in respect of the Governorship election of the Cross River State, held on the 19th of April, 2003 at the Election Tribunal, sitting at Calabar hereinafter referred to as the lower tribunal.

That petition was actually filed by one Usani Uguru Usani, who contested the same Governorship election under the platform of New Democrats (N.D.) and lost. He contested together with Mr. Donald Duke, who contested under the platform of the Peoples Democratic Party (P.D.P.) At the close of the Election, the Independent National Electoral Commission (INEC) declared Mr. Donald Duke the winner of the said election. The petitioner in that Tribunal insisted that the respondents were wrong in returning Mr. Donald Duke at the said election, since he, the 1st respondent, was not qualified to even contest the said election. The petitioner, consistently claimed to have a right to be returned or elected at the said election.

It is to be noted that what actually prompted the presentation of this petition was the declaration by the 2nd – 21st and 24th respondents of Mr. Donald Duke as the winner.

The petitioner being dissatisfied with the declaration, filed a petition to the 1st election Tribunal, sitting at Calabar, challenging the return of Mr. Donald Duke, the 1st respondent as elected.

After the rudimentary proceedings appeared to be settled giving way to the hearing in earnest of the petition the petitioner then filed a motion on notice containing two prayers, namely:

(a) Stay of proceedings of the Tribunal; and

(b) Leave to appeal against the earlier ruling of the Tribunal on the 1st of July, 2003.

The 1st respondent’s Counsel objected to the granting of those prayers. The Tribunal upheld the objection and refused to grant the said prayers on 7/7/2003. Consequently, the 1st respondent’s Counsel applied to move its pending motion dated 17/6/2003 for an order striking out the petition on the ground that the petitioner had withdrawn his candidacy even before the election was conducted.

The petitioner, the respondent in that application, who filed no counter affidavit to the application, sought for an adjournment which was turned down. There and then the learned Counsel for the petitioner Dr. Tony Ukam, orally applied to bow out from the Tribunal’s proceedings. This was also refused on account of failure by the petitioner to come by formal application to withdraw his representation of his client and for lack of due notice to his client of that line of action.

The 1st respondent’s application was then moved and granted whilst the petitioner’s counsel left the court un-ceremoniously and later filed an appeal against the ruling of the Tribunal delivered on 7/7/2003 to the Court of Appeal.

The panel of the Court of Appeal came down to Calabar and heard the appeal. Judgment was delivered in which it unanimously agreed with the petitioner’s counsel and allowed the appeal and ordered for hearing de novo by a reconstituted Tribunal. Hon. Justice Amina Augi J.C.A. who delivered the leading judgment on 5/11/2003 held thus:

” … The end result of the foregoing is that the appeal succeeds and is allowed. The decision of the Tribunal striking out the petition in its ruling delivered on the 7th day of July 2003, is declared null and void and it is hereby set aside. The petition is remitted to the Tribunal to be re-constituted by the President of this court for hearing de novo.”

See page 176 of the record.

The reconstituted Tribunal started hearing in earnest, the petition de novo, as directed by the Court of Appeal. The petitioner called nine (9) witnesses who testified on his behalf. The respondents equally called nine(9) witnesses who testified for them. The 2nd to 21st and 24th respondents called a total of four, (4) witnesses.

Throughout the proceedings, one thousand and eighty six (1086) exhibits were tendered and admitted in court.

In the course of the proceedings some un-complimentary statement involving counsel to the petitioner and member of that Tribunal and a bailiff took place. Two days after the Tribunal was served with a copy of the petition addressed to the President of the Court of Appeal by the petitioner’s Counsel.

Before then, further hearing of the petition was at the instance of the petitioner’s Counsel and adjourned for continuation to 7/4/2004 to allow the Director of NYSC to testify. Consequently, the petitioner’s Counsel did not show up in court. The Tribunal then foreclosed the petitioner’s case for them and ordered the defence to open its case. The Tribunal has this to say on page 376 of the record of proceedings:-

“Notwithstanding the fact that this petition was adjourned to 7-04-05 at the instance of Dr. Ukam to enable him put up a witness, the Director of NYSC whom he said promised to be in Calabar on the 7-04-05, this Tribunal waited up to 10.00 a.m. Dr. Tony Ukam failed to show up in the Tribunal. Since the petition was not addressed to us, there were no reasons advanced by learned Counsel to the petitioner why he was not before the Tribunal, so upon application by counsel to the 1st respondent and that of the 2nd – 21st and 24th respondents that the matter be either dismissed or struck out, this Tribunal instead deemed the case for the petitioner closed, thereafter, the case was adjourned to enable the respondents to open their defence.

There were attempts by Mr. Paulinus Asuquo one of the counsel appearing with Dr. Tony Ukam for the petitioner on the 20th, 22nd and 26th of April, 2005 to make some applications. The applications were either struck out for want of diligent prosecution or for lack of jurisdiction.

It was after these attempts that both counsel to the petitioner abandoned this petition. Mindful of the fact that there is no order for stay of proceedings, we had no option left but to proceed to hear the respondents’ side of the story.”

The reconstituted Tribunal received the respective addresses of all the counsel in this matter, considered the pleadings and evidence and held in effect that they agreed that in each of the Wards and Local Government where the petitioner’s witnesses alleged that no election took place, the respondents led credible evidence from both registered voters and the 2nd respondent’s respective electoral offices to show that election actually took place in the areas referred and that the results were properly collated in accordance with Electoral guidelines. They believed the pieces of evidence as embodied in exhibits RB – RB 16; RC and RD showing the collated results of all the Local Government Areas of Cross River State as well as the summary of all the electoral votes in the state as valid and credible the evidence they agreed is authentic.

Learned Tribunal further stated in their holding that a petitioner who alleges falsity of election results can only succeed in proving his allegation if he produces two sets of results the one that is correct and the other that is false. In this case, the Tribunal held that this was not done therefore the petition on this point must fail. They therefore believe the respondents. The reconstituted panel has finally on 20/5/2005 held on pages 396-397 as follows:

“Having discountenanced the evidence of the witness called by the petitioner, there is no any evidence to which the evidence of the respondent (sic) could be tested with the final being as rightly concluded by VI. Udoh Esq. that the petition fails for reasons of the combination of factors which we have discussed in this case. That is to say, the petitioner having led no evidence to show that the 1st respondent was unqualified to contest the 19th April, 2003 elections, the petitioner having failed to prove beyond reasonable doubt the allegation of irregularities and corrupt practices allegedly perpetrated by the respondents and failure to prove any non-compliance with the provision of the Electoral Act is fatal. The implication of what we have been saying is that the lone issue raised is hereby resolved against the petitioner. The petition for all we have said having failed, it is hereby dismissed.

The petitioner being aggrieved by the above decision appealed to this court on a notice of appeal containing four grounds of appeal filed on 26th May, 2005. The grounds of appeal are, without their particulars, reproduced hereunder:

“Ground One:

The learned Trial Tribunal Chairman and members erred in law in descending into the arena on the issues of the subpoenas and the disobedience to the subpoenas issued to petitioner’s witnesses.

Ground Two:

The learned Trial Election Petition Tribunal Chairman and members erred in forcefully and prematurely closing the petitioner’s case suo motu without let, quorum or jurisdiction whatsoever.

Ground Three:

The learned Trial Election Petition Tribunal Chairman and members erred in striking out the motion on notice filed and dated 12/4/05.

Ground Four

The learned Trial Election Petition Tribunal Chairman and members erred in law when they proceeded with the case to conclusion without the petitioner and his counsel and delivered judgment on Friday, 20th May, 2005 despite lack of jurisdiction.”

Parties then filed their respective briefs of argument. The appellant filed his brief of argument on 25/8/2005 in which three issues were formulated thus:

“2.1 Whether the learned trial Tribunal Chairman and members misdirected themselves when they discerned (sic) into the arena to excuse the subpoenaed witnesses for disobeying the subpoenaed issued to them.

2.2 Whether the learned trial Tribunal Chairman and members erred in law, when they foreclosed the petitioner’s case/witnesses, and struck out petitioner’s motions calling for a rescission of the foreclosure orders.

2.3 Whether the learned trial tribunal erred in law to have ignored the challenge of their jurisdiction, when it was called to question by the petitioner, and to have continued other proceedings without resolving the question of confidence and jurisdiction first.”

The respondents in turn filed their respondents brief of argument deemed filed on 14th November, 2005, after withdrawing their preliminary objection in their application dated 4/8/2005 filed on 5/8/2005, which application was struck out by this court on 14/11/2005 together with all the arguments therein.

The appellant, on service of the joint respondent brief on them, filed their reply brief on 8/9/2005.

The respondents’ counsel Chief Olanipekun SAN filed their brief containing two issues formulated by him for determination thus:-

(i) Upon a dispassionate consideration of the surrounding circumstances, the prayer(s) of respondents’ counsel and the attitude of the petitioner and his counsel to the prosecution of petitioner’s case, whether the decision of the lower tribunal on 7th April, 2005, deeming the case of the petitioner closed was not proper grounds 1, 2 and 3.

(ii) Whether the petitioner Counsel’s letter/petition dated 6th April, 2005 and addressed to the Honourable President of the Court of Appeal constitutes a challenge to the jurisdiction of the lower tribunal to wanrant a stay of its proceedings – Ground 4.”

Now, I shall deal with the issues as contained in the appellant’s brief of argument, I shall thereafter, or in the course of dealing with same juxtapose and compare the issues raised by the respondents.

Issues one and two are going to be dealt with together:

“2.1 Whether the learned Trial Tribunal Chairman and members misdirected themselves when they descended into the arena to excuse the subpoenaed witnesses for disobeying the subpoenaed issues to them.

2.2 Whether the learned Trial Tribunal chairman and members erred in law when they foreclosed the petitioner’s case/witnesses, and struck out petitioner’s motions calling for a rescission of the foreclosure orders.”

For the argument of these issues learned Counsel for the appellant Dr. Ukam submitted through argument in his brief that his main complain is the Tribunal’s inclination to support unlawfully the attitude of the witnesses subpoenaed to speak for them.

Accordingly, the learned Counsel contended forcefully that there are no cogent reasons why the following witnesses should disobey the directive contained in the various subpoena: The remaining witnesses are:

First respondent, i.e. The Governor of the State
Director General of NYSC
Chairman INEC
The Resident Commissioner of INEC in Cross River State
The General Manager of N.T.A. Calabar; and
The General Manager of Cross River State Broadcasting Corporation.

Learned Counsel was again furious by the position taken by the Tribunal. In that, sufficient money was deposited in the Registry to take care of the transport costs of the subpoenaed witnesses and this was uncontroverted. It was never the requirement of the law that such transport cost should be delivered to the said witnesses by petitioner or his counsel. Nonetheless the Tribunal held thus:

” … while there is proof of service on some of witnesses subpoenaed there is no proof that the sum prescribed by the law was tendered to any of them for his expenses.”

The Tribunal was very much concerned with whether or not the provisions of section 229 of Evidence Act as been complied with by the petitioner to warrant the issuance of bench warrant against the subpoenaed witnesses.

Learned Counsel considered the action of the chairman and members of the lower Tribunal as descending into the arena to answer on behalf of the disobedient witnesses vis-a-vis the reasons why they failed to answer the subpoena. He contended that the learned Tribunal should have exercised some patience and make full enquiries about the action of the bailiff or secretary to the Tribunal, all for the need to respect the long term principle of giving the other party a hearing. In a nutshell, if I understand the counsel very well, he is aiming at reminding us that no court shall take it upon itself, the duty of making a case for any party – Doukplolagha v. Alamieyesigha (1999) 6 NWLR (Pt. 607) 502.

The decision of the lower Tribunal to the effect that “this is a provision providing for penalty against the persons so subpoenaed and must be strictly construed. That we do not consider the mere deposit of money with the secretary of the Tribunal as sufficient compliance with the provision. Since that vital part of section 229(2) of the Evidence Act has not been complied with, no warrant can be issued against any of the subpoenaed witnesses that had been duly served. In the circumstance the application is hereby refused.” This ruling was highly condemned by the learned Counsel for the petitioner as highly technical. See page 208 of the records.

I do not wish to go on and on over the comments of the learned Counsel for the appellant orally and in their brief, since we were advised by him on the hearing date not to consider what had happened in the Tribunal seriously and in fact he urged us to forget it. I think ours as Judges is to be patient all the time. We will not comment on whatever anybody will consider as adverse comments emanating from any party.

I must begin by stating the obvious that since the learned Counsel for the respondents decided to withdraw his preliminary objection and this court struck it out on 14/11/2005, nothing was said about it. I will not refer to anything stated by the learned Counsel on the preliminary objection, be it the respondent’s counselor the appellant’s counsel in his reply brief. This is basic and trite, that needs no authority to support it.

Even though election petition proceedings were said to be sui generis I consider it always to be all important in deserving some respect by all the stakeholders, learned Counsel inclusive. Let us take the bull by the horn. Learned Counsel for the appellant Dr. Ukam right from the initial stage did not take this matter seriously. I kept wondering what might have caused this type of lukewarm attitude personally? I cannot comprehend a brilliant Counsel like Dr. Ukam could allow his vision to be beclouded by some other considerations other than legal issues. It is unfortunate that this happened. I believe that every opportunity has been granted for the appellant to be heard but for one reason or another failed to utilize same such persons cannot therefore be heard to complain of lack of fair hearing. One can only lead a horse to a river but cannot force it to drink water. I do not think it is fair to a Tribunal or Court to be held to ransom.

I have considered the proceedings of the lower Tribunal and what transpired before it closely. I have actually admired the amount of patience exhibited by the learned Chairman and the members of that Tribunal. I salute their patience and mental dexterity employed to do justice in the matter. I do not honestly think we can improve on it.

Consistently with the above, and without much ado that the decision of the lower Tribunal to close appellant’s case on 7th April, 2005, when he and his client choose to stay away from the Tribunal’s sitting is imminently un-impeachable and correct in law. The learned Counsel cannot dictate or set a pace to be followed by any court or Tribunal outside the legal framework.

I cannot see how a learned Counsel of Dr. Ukam’s caliber could allow himself, his client and his witnesses to be absent and then claimed lack of fair hearing. This attitude should be condemned by all and sundry. How can a Counsel who suddenly became “a nursing father” use it in a court of law to seek for an adjournment and worse still, the Tribunal which is liberal to the hilt will oblige him an adjournment in an important matter like election petition? There are so many instances where the Tribunal, with respect, obliged the same counsel on these flimsy reasons which cannot find support in law.

I hold as held by the Supreme Court in Scott-Emuakpor v. Ukaibe (1979) 1 SC 6 that:-

“When a party in a legal duel receives a hearing notice, but decides to be absent the obvious conclusions is that he has chickened out.

I must but agree with the submissions of the learned Counsel to the respondents, Olanipekun SAN in his brief of argument deemed filed on 14/11/2005. I have the suspicion that learned appellant’s Counsel never came to Court prepared for the reason best known to him. His client might have been left in darkness. I agree entirely with Chief Olanipekun SAN that there is no lack of fair hearing in this matter, they are only crying “wolf where there is none.”

The decision of the Tribunal on 7th April, 2005, deeming the case of the petitioner closed was the best option that could happen under the circumstances of this case. I am fortified by the authorities cited by the respondent’s counsel which are apposite, namely:

(1) Abubakar v. INEC (2004) 1 NWLR (Pt.854) 207;

(2) Mankanu v. Salman (2005) 4 NWLR (Pt. 915) 270

(3) L.S.D.P.C v. N.L. and S.F. Ltd. (1992) 5 NWLR (Pt.244) 653/672 and 673.

In the above case at p. 672 – Olatawura JSC in a similar situation has this to say:-

” …then the absence of a counsel who was duly notified of a further address appears to me a calculated act of disrespect which borders on misconduct. A Counsel who is unable to attend the court owes it a duty to arrange for another counsel to hold his brief. It is discourteous and impolite for a counsel to turn down the invitation of this court to address it further on any issue. If counsel appreciates he is first and foremost an officer of the court, his duty as an officer is to show utmost respect and not in the passage treat the process of court with levity. Mr. Olufote should regard this observation about his conduct as a warning which he must not be repeated.”

So also the cases of Onadeko v. U.B.N. Plc (2005) 4 NWLR (Pt.916) p. 440 at p. 469 paras A-B per Adekeye, JCA.

I do not think, with all sense of responsibility it is right for anybody to lay all the blames of the learned Counsel at the door step of the lower tribunal over the palpable failure to measure up. Where any counsel in any court or tribunal fails to render a skilful and professional service expected of him without any hindrance he has himself to blame and never shift the blame on the Tribunal. That being the case issues one and two formulated by the appellant are resolved against him. The learned Tribunal Chairman and his members are correct in their action and by so doing did not descend into any arena. We so hold. Both issues therefore failed.

It must be noted from the onset that none of the grounds of appeal filed by the appellant challenged the findings and decisions of the lower Tribunal. Rather, the grounds of appeal merely challenged the procedure adopted by the Tribunal in completing its assignment, i.e. the determination of the petition. Hence, this appeal is on technicality which has no bearing to the merit or otherwise of the lower Tribunal’s decision. It is trite that the findings and decisions of the lower Court not appealed against is valid and subsisting.

On the 3rd and last issue formulated by the learned Counsel for the appellant which reads thus:

“2.3 Whether the learned Trial Tribunal erred in law to have ignored the challenge of their jurisdiction, when it was called to question by the petitioner, and to have continued other proceedings without resolving the question of confidence and jurisdiction first.”

The main grouse of the petitioner/appellant was that the petition that challenged the jurisdiction of the Tribunal, which was handed over to the chairman in the morning of 7/4/2005 was not a faceless one. Instead of the Tribunal to timeously consider the challenge of their jurisdiction and to act accordingly the Tribunal suspended their sitting for one year. Again, according to the petitioner it was on the same 7/4/2005 that the respondents’ Counsel lavishly castigated the leading counsel to the petitioner for refusing to come to court. The Tribunal was allegedly misled on the same date into foreclosing petitioner’s case. It was his submission therefore that, the Tribunal was wrong to have proceeded to hear evidence and adjudicate on the matter without ascertaining whether it has jurisdiction to proceed or not.

In the respondents’ brief at page 27, it was argued that the so called petition has raised nothing but unfounded, spurious and lifeless allegation against a Judge of a superior court and coming as it were from the appellant’s counsel himself does not equate or amount to a challenge on the jurisdiction of the Tribunal. This is because that was not how the jurisdiction of a court or Tribunal should be challenged.

On another occasion, the appellant’s Counsel submitted that one of the counsel who appeared for the appellant at the Tribunal was bamboozled and stampeded upon to withdraw his over one hour submission. Learned Counsel for the respondents contended that this submission is misleading and unsupported by records. See Anuka Community Bank (Nig.) Ltd. v. Olua (2000) 12 NWLR (Pt.682) 641.

I have to state at this stage that the argument of both counsel to the 1st and 2nd-21st as well as 24th respondents were taken into consideration in preparing this judgment. Mr. Osazi-Ozzi relied heavily on the preliminary objection filed and argued. I must agree that where particulars supplied under the grounds of appeal are a complete prose, repetition, argument and prolix the grounds may be bad. The fact that issues must be related to ground or grounds of appeal is basic. In view of what is contained in the 1st respondent’s brief which is in the same line with the position taken by the 2nd-21st and 24th respondents, I will now consider them together and treat them as one. In view of the fact that I was outraged by the attitude of Dr. Ukam, learned Counsel for the appellant, I do not intend to give a detailed result on the preliminary objection, I will rather go direct to the main appeal.

A party who failed to submit his case for consideration by reason of his absence in court cannot complain of a breach of fair hearing.

The Supreme Court in Oyeyipo v Oyinloye (1987) 1NWLR (Pt. 50) 356; (1987) 2 SCNJ 53 at 63, stated the position as follows:

“I agree that the rules of natural justice are applicable to hearings of the Court, whether sitting in chambers or in open Court. Where the rules of natural justice are properly applicable, a violation of the rules will result in the nullification of the proceedings. However, the rules are applicable to a party whose case is properly before the court and not where a party has not satisfied the conditions of being heard. In my opinion where the party, as in this case the applicant, has not satisfied the conditions required for hearing his case, the court will not be competent to hear him. See Madukolu and others v. Nkemdilim & Ors. (1962) 2 SCNLR 341; (1962) 1 All NLR 582.

The right to be heard, having not been earned, cannot be exercised. In my opinion, there is no question of the breach of a non-existent right. This court has pointed out in Onwuren v. Modern Sugar Nig. Ltd. (supra), that a party who has failed or neglected to submit his case for consideration, cannot complain of a denial of hearing.

The failure to or neglect per se tantamounts to an abandonment of the appeal.”

Applying this principle as enunciated above in this case, when the appellant and his Counsel failed to appear in Court to prosecute the case, for whatever reason, they are deemed to have abandoned the case and they cannot thereafter, complain of breaching of a nonexistent right to fair hearing. A right not earned cannot be exercised.

Having considered the appellant’s brief of argument, I found that there is no serious challenge to the position taken by the learned Chairman and members of the lower Tribunal. I tend to agree with the submission of the Counsel to the 2nd – 21st and 24th respondents on page 12 of their brief when it submitted that:

“It is a misnormal and, indeed, an inspid (sic) insipid disregard for judicial officers, for appellant’s Counsel to use rabid and intemperate language against the judges of the Tribunal in his brief, rather than address issues and leave their Lordships of this court to draw conclusions based on facts and evidence on the record before them. This is rather unfortunate and condemnable.”

Learned Counsel to the 1st respondent Chief Olanipekun SAN in the same vein stated on page 29 of their respondents’ brief has this to say:-

“It is undoubtedly incompetent for the appellant’s counsel to use and or employ harsh and unpolished language in appellant’s brief against or in criticism of the esteemed personalities of members of the lower Tribunal and Counsel to the respondents.”

See Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at 312- 313; Alon v. Dandrill (Nig.) Ltd. (1997) 8 NWLR (Pt.517) 495 at 502 503; and Eriobuna v. Ezeife (1992) 4 NWLR (Pt.236) 417 at 433. I noted with concern what this court and the Supreme Court stated over this type of unfailing trend. In Igiehon v. Omoregie (1993) 2 NWLR (Pt.276) 398 at 405, this court (Benin Division) per Adio JCA as she then was of blessed memory, cautioned Counsel to desist from criticizing trial Judges or accusing them unduly and without any concrete reason or ground establishing bias or prejudice. In the Supreme Court, it was held in effect that an allegation of bias against a Judge cannot be founded on mere conjectures but on concrete and real evidence.

‘Bias, in relation to a court or tribunal, is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so, towards or involving a particular party in a case.

Also, in a case where bias is being alleged against a court or Judge, it is not the real likelihood that the court or Judge could or did favour one side at the expense of the other that is important, it is that any person looking at what the court or Judge has done, will have the impression in the circumstances of the case, that there was real likelihood of bias.”

See also the following cases:

Metropolitan Properties Co. Ltd. (F.G.C.) v. Lannon (1969) 1 QB. 577;
Olue & Ors. v. Enenwali & Ors. (1976) 2 SC. 23; and
Kenon and Ors. v. Tekam & Ors. (2001) 14 NWLR (Pt.732) 12; (2001) 7 SCNJ 620 at 634 -633.

I have carefully gone through the proceedings in this case, and applying the principles of law as stated above, I have not seen where the lower Tribunal could be said to be biased. The proceedings, in my view, were conducted in accordance with the rules of procedure and Provisions of Evidence Act; and there was no likelihood of the lower Tribunal being biased in this case.

My Lords, I think you should pardon me not to condemn the appellant’s Counsel through and through. I was overwhelmed by his oral statement in court on the 14/11/2005 to the effect that on a sober reflection, he realized the futility of his action and all my members and my humble self accept his posture. We all agree that what Dr. Ukam did in that letter under reference, even though he appears to be disassociating: himself from its authorship, is most unfortunate and condemnable we should say no more on that.

In the result, this appeal completely lacks merit. Same is hereby dismissed.

For the avoidance of any possible doubt the appeal fails.

The decision of the lower Tribunal is un-assailable and correct in law. Appeal lacks merit and same is dismissed. The Executive Governor of Cross River State Mr. Donald Etim Duke shall remain the elected governor. The 2nd – 21st and 24th respondents’ action in returning him as elected was in order and correct. There shall be an end to litigation. Cost of Ten Thousand Naira is awarded in favour of all the respondents, including the Executive Governor.

FABIYI, J.C.A.: I agree with the reasons contained in the judgment of my learned brother, Muntaka-Coomassie, JCA and the conclusion therein contained that the appeal is devoid of merit and should be dismissed. After a careful deliberation at our conference, we agreed on same.

I seek leave to chip in a few words of my own in support of our firm stand. The complaints ventilated by the appellant are fairly cognizable in the grounds of appeal. The grounds of appeal should be saved for what they are worth so as to determine the appeal on its merit. Preliminary objection taken in respect of the propriety of the grounds of appeal is hereby overruled.

It is often said that election petitions are, by their nature, sui generis. They have to be tried expeditiously because of time factor which both sides must bear in mind. The appellant as petitioner at the trial Tribunal who is itching to ‘take over the siren’ should be eager to prosecute his petition. On the other hand, the 1st respondent, who was declared as winner, desires to have the petition behind him so as to have time for state business and be able to sleep with his two eyes closed. Even then, the society at large may be eager to know who is their real Chief Executive. Thus, a petitioner must be serious in conducting his petition.

As manifest in the record of appeal, learned Counsel for the petitioner at the lower Tribunal was fairly lackadaisical in his mode of operation. He sought for too many adjournments and he was pampered with same before 5th April. 2005, when the case was adjourned to 7th April. 2005 upon his application. The appellant and his counsel were absent without any genuine reason advanced to the trial Tribunal. The Tribunal then closed his case and he has the qualm to complain on his own inaction. Since the appellant failed to show up before the Tribunal on 7-4-05. ‘the obvious conclusion is that he has chickened out’. Refer to Scott v. Enuakpor v. Ukavbe (1979) 1 S. C. 6.

It is clear that the appellant had the opportunity of being heard, but he failed to utilize same. He should not be heard to complain as same amounts to ‘crying wolf where there is none’. He talked of breach of fair hearing for no just cause. He attempted to capitalize on his own wrong doing; all to no avail. See Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) 444 at p.456.

It was the appellant’s counsel who took the date and failed to show up at the Tribunal. I am of the considered opinion that in closing the appellant’s case on 7-4-05, the trial Tribunal exercised its discretion judicially and judiciously as well. It must be borne in mind that judicious means acting with circumspection in the interest of both parties. Refer to Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46; (1989) 2 NSCC (Pt. 1) 503 at p. 513. I am unable to see my way clear in faulting the stance of the trial Tribunal.

The appellant tried to hold the trial Tribunal to ransom. He did not appreciate that the Tribunal was in charge of the proceedings before it and not dictated by his own desires and pace. I am at one with the trial Tribunal in the manner it showed the appellant the red card at a very auspicious moment when the appellant felt that he was larger than life.

Let me briefly say that the way and manner in which the learned Counsel for the appellant addressed the lower Tribunal left much to be desired. A counsel should always employ temperate language in addressing judicial officers who are merely discharging their Constitutional functions. There must be mutual respect on both sides of the divide. There should be no rancour or acrimony.

For the above reasons and those ably set out in the lead judgment which I adopt as mine, I come to the conclusion that the appeal lacks merit and should be dismissed. I order accordingly and endorse all consequential orders in the judgment of my brother: that relating to costs inclusive.

ADEREMI, J.CA.: I have been privileged with a preview of the Judgment just read by my learned brother, Commassie, JCA. I agree with his reasoning that the preliminary objection is devoid of any merit and should be overruled and that the substantive appeal for reason of being unmeritorious should be dismissed.

I shall hereunder make my own little comments on this appeal and I shall start with the issue of adjournment. The appellant has in grounds 2 and 4 contained in his Notice of Appeal complained of lack of fair hearing in that the lower Tribunal, suo motu, closed the case of the petitioner/appellant and thereafter proceeded to deliver the judgment without the petitioner and his counsel further participating in the proceedings.

The crucial issue is whether the lower Tribunal was right in deeming the petitioner’s case closed having regard to the prevailing circumstances of this case. The record of proceedings is replete with several applications from the petitioner/appellant’s Counsel to the lower Tribunal for adjournment of the continued hearing of the petition proffering all sorts of excuses. Suffice it to say that the lower Tribunal accommodated the petitioner by gratuitously granting the several applications made by the counsel for adjournment until the 7th of April, 2005, when the lower Tribunal refused to continue to adjourn the further hearing of the petition and deemed the case of the petitioner as having been closed. In so ordering, the lower Tribunal reasoned thus:

“When this case came up on 5/4/2005 the petitioner’s counsel, Dr. Ukam, specifically asked for the adjournment of the case till today for further hearing and the Tribunal then adjourned the case for further hearing today. The petitioner called his last three witnesses, PW7, PW8 and PW9, on 2/3/2005 and thereafter asked for adjournment on the ground that his other witnesses were on subpoena and that some of them had not been duly served. The case was then adjourned to the following day, 3/3/2005. The story was the same on 3/3/2005 and the case was again adjourned to 10/3/2005. On 10/3/2005, the Counsel sought for adjournment to enable the witnesses to come and testify. The case was again adjourned to 17/3/2005 for further hearing. On 17/3/2005, the case could not be heard because a member of the panel of Tribunal who lost his father had to go for the burial of his late father Dr. Ekam, informed the Tribunal on that day that an official of NYSC from Abuja was in court that day to give evidence. The case had to be adjourned to 30/3/2005, because the Tribunal had a break between 21/3/2005 and 29/3/2005. On 30/3/2005. Dr. Ukam was absent but sent his junior, Mr. Asuquo to ask for adjournment on the ground that his principal was indisposed. The adjournment was granted and the case then adjourned to 5/4/2005 for further hearing. On 5/4/2005 none of the witnesses he subpoenaed was present in court. Dr. Ukam then asked for bench warrant to be issued on them to compel them. After the submissions of Counsel on the issue, the Tribunal, in its ruling, refused the application. The Counsel then indicated that the Director General of NYSC informed him that he would be available on 7/4/2005 and asked that they be adjourned till today and the application was granted.

But when the case came up today the petitioner, who has never appeared in the case as usual, was not present and his counsel refused to appear, nor send his junior. We were informed by the respondent’s Counsel that they saw Dr. Ukam and his junior, in the High Court premises at about 9.45 am this morning robbed (sic) and going to appear in another court.

Notwithstanding our liberal approach to the various cases before us, which Dr. Ukam seems to have taken advantage of, there is a limit to the point we can go to indulge a counsel. The attitude of Dr. Ukam is totally disrespectful to this Tribunal and we have extremely restrained ourselves in absorbing some of the antics of the counsel. It seems to us that the petitioner and his counsel have not shown sufficient proof that they are ready to call more witnesses than they have called by abandoning the case, as evidenced by their absence in Court this morning.

Although, the respondent’s counsel strenuously urged us to either strike out or dismiss the case, we would not do so. Instead, the petitioner would be deemed to have closed his case by failing to proceed with the case.

The above is the stage-by-stage account of the happenings in the Court of Justice, which led the Tribunal to deem the case of the petitioner as having been closed. It must be always borne in mind that for the reason of the peculiar nature of election petitions time is of the essence in the healing and determination of election petitions.

Frequent adjournments of the hearing or further hearing of the cases, particularly when they are predicated on flimsy and unworthy excuses, often lead to justice being delayed. The saying is that justice delayed is justice denied. Let it be said that adjournments of cases fixed for hearing are not obtainable as a matter of course but may be granted or refused at the court’s discretion. The exercise of the discretion is a judicial act, which is open to appeal by an aggrieved party. However, to succeed in an appeal against such exercise of discretion, the appellant must satisfy the appellate court that the trial Court acted to an entirely wrong principle or failed to take all the circumstances of the case into consideration and that the order made by the court would work injustice to the appellant. I said that what the Court does in whether to accede to the request to adjourn further hearing of a case or refuse same is purely a matter of judicial discretion, which itself is governed by several factors at the same time. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially, but also judiciously on sufficient materials laid down before the court.

Let it be, however, said that no court can be bound by a previous decision to exercise its discretion in a particular way, for to permit that, would be in effect putting an end to the discretion. see Unilag & Anor v. Aigoro (1985) 1 NWLR (Pt. 1) 143; (1984) 11 SC 152.

That explains why an appellate Court is always wary to interfere with the exercise of judicial discretion. Where, however, it is obvious on the face of the proceedings that the court below, has in granting or refusing an application for an adjournment, allowed itself to be guided by wrong principles, an appellate court will readily interfere with the exercise of that discretion. See Odusote v. Odusote (1971) 1 All NLR 219.

Having stated the principles to follow, can I given the facts that I have set out supra, say that the lower Tribunal has exercised its discretion in a manner that is unjustifiable? A calm reflection of the scenario that I have reproduced above leaves me in no doubt the honourable chairman and members of the lower tribunal have bent too much forward and backward to accommodate the petitioner/appellant. The quest of the Tribunal to give the petitioner/appellant the opportunity to establish his case has exceeded the limit which a court should go; the Chairman and members are not be blamed, among other virtues, it seems to me that they have in abundance the virtue of patience which is one of the most important virtues a judex must possess. But let no counsel properly so called and who will like to carry the tag of a “veritable officer in the citadel of justice” on his head desecrate the seat of justice by such an abuse of the kind gesture of a judex as was done in the instant case. The legal profession is no doubt the only honourable profession, given its impact on the society of men. Those who are privileged to be admitted to this “Exclusive Club” of gentlemen must not only uphold the ethics laid down for the profession, they must always be seen to be doing so. The scenario evinced through the proceedings at the lower tribunal is a “show of shame”; no honourable man should be credited with it. Antics that will lead to delay of justice must be abhorred by officers in the citadel of justice. I stop here.

For this little contribution but most especially for the detailed reasoning contained in the lead judgment, I also dismiss the appeal, while I abide by all the consequential orders contained in the lead judgment, including the order as to cost.

ADEKEYE, J.C.A.: I had read before now, the judgment just delivered by my learned brother, M.S. Muntaka-Coomassie, J.C.A. He had given a comprehensive consideration to the issues identified for determination in this appeal.

The issues for determination brevi menu are mainly three fold- (i) disobedience of subpoenaed witnesses and the court descending into the arena. I cannot actually pinpoint what the grouse of the appellant is on this issue – but it is like blaming the Court for not issuing bench warrant on the subpoenaed witnesses of the appellant, who refused to appear in Court to give evidence for him. A bench warrant is a discretionary power of a court invoked to secure the attendance as in this case of an unwilling witness under the threat of contempt of court to give evidence on any area of a suit within his knowledge. It is nor a discretion which is exercised as a matter of course. The court has to be satisfied that there is absolute necessity to procure the appearance of the witness in court. The lower Tribunal based its refusal to issue bench warrant on non-compliance with section 229(2) of the Evidence Act. The appellant’s Counsel was greatly offended by the reaction of the lower Tribunal.

The lower Tribunal adjourned its sitting on the 5th of April, 2005 to the 7th of April, 2005 upon an application to secure witnesses on subpoena in court. The appellant’s Counsel did not appear in court on 7/5/2005. The appellant himself according to the record did not attend the sittings of the lower Tribunal. The appellant and his counsel abandoned the sittings of the tribunal as from the 7th of May, 2005. Nine witnesses had testified for the appellant as at that time. The tribunal delayed its sitting on that date until it was apparent that the appellant’s Counsel was not going to attend court and there was no written explanation to court for his absence or that of his client – the appellant. The respondents urged the court to dismiss this case. The lower Court closed the case of the appellant and proceeded to defence in the petition. The appellant complained of lack of fair hearing.

I have looked at the court proceedings before the lower tribunal at page 157-182 of the main record and pages 271 1-65 of the supplementary record. I cannot but have the impression that the court granted an unprecedented latitude to the appellant in adjourning hearings at the instance of the appellant’s Counsel. Both the appellant and his counsel stayed away from court during the hearing of the petition and after taking nine of their witnesses. The appellant regarded the courts reaction to his absence and that of his counsel from the sittings of the tribunal during the hearing where the tribunal took the course of closing his case and hearing the defence as a denial of fair hearing of his case. Fair hearing is defined as a judicial or administrative hearing conducted in accordance with due process.

The right of fair hearing is a fundamental constitutional right guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria, 1999, and a breach of it particularly in trials, vitiates such proceedings rendering same null and void. It is a basic and fundamental principle of law where a persons legal rights or obligations are called into question he should be afforded full opportunity to be heard before any adverse decision is taken against him – with regard to such right or obligation. An adjudicating authority in order to be right and just must hear both parties and give them an uninhibited opportunity to present their case where one or the parties is refused or denied hearing or is not given an opportunity to be heard such hearing cannot qualify as fair hearing in the spirit of the rule as expressed in the maxim “audi alteram partem” – in effect hearing cannot be said to be fair if any of the parties is refused a healing or denied the opportunity to be heard, present his witnesses or call evidence. Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) page 659; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) page 290; Isyaku v. Master (2003) 5 NWLR (Pt.814) page 443; Awuse v. Odili (2005) 16 NWLR (Pt.952) page 515. In closing the case of the appellant, the Tribunal had to advert its mind to the peculiar attribute of election petitions particularly that time is of essence in the hearing and determination of the petitions. Buhari v. Yusuf (2003) 14 NWLR (Pt.841) page 446; Orubu v. NEC (1988) 5 NWLR (Pt.94) page 323; Abdullahi v. Elayo (1993) 1 NWLR (Pt.268) page 171; Obi-Odu v. Duke (No.2) (2005) 10 NWLR (Pt.932) page 105.

Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation he failed or neglected to attend the sitting of the court, the party cannot therefore be heard to complain of lack of fair hearing. Equally, where a party is fully aware that his case is going on and voluntarily stopped attending court, he cannot turn round to complain of want of fair hearing. The appellant in this case does not deserve from his conduct in this case any consideration of denial of fair hearing in his favour. The argument that he was not afforded fair hearing does not arise. It would have been unjust to hold the court and the other parties in the petition to reason. Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt.478) page 344 at 349; S & D Construction Company v. Chief Bayo Ayoku & Anor (2003) 5 NWLR (Pt.813) at page 278; Abubakar v. INEC (2004) 1 NWLR (Pt.854) page 207.

The other leg of his complaint is that the court lacks jurisdiction to hear the matter, when it closed the appellant’s case and proceeded to hear the respondent’s case and gave judgment thereafter. The Tribunal lacked jurisdiction in the matter when the appellant’s Counsel delivered a protest letter to the Tribunal – it was a breach of fair hearing for the court to proceed further with hearing without first resolving the issue of the letter. The silence of the Tribunal over the letter cannot vest it with jurisdiction which it has been deprived by the letter of protest. The application that the Tribunal should set aside its order was refused – and was followed by the letter of protest which was served on the Tribunal. This had deprived the Tribunal of the jurisdiction of continue hearing in the case. The letter was based on the petitioner’s lack of confidence and trust in the Tribunal’s fair conduct of the petition. I have to express that writing a letter protesting about lack of confidence in a Court handling a matter is not unusual. It is an administrative matter which the President of the Court of Appeal can handle by way of reassigning the petition – it has nothing to do with the jurisdiction of that particular Tribunal which stands until there is an order from above to the contrary. Where there is an objection to the hearing by a court on the procedure adopted by the court such can only be tested on appeal and not by the complainant boycotting his case. A Court is competent when –

(a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.

(b) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.

(c) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

The foregoing requirements must all however co-exist conjunctively before the right to the exercise of jurisdiction can be met. The Tribunal did not fall short of any of the foregoing sitting on that petition.

Madukolu v. Nkemdilim (1962) 2 SCNLR PG. 341; Okonkwo v. INEC (2004) 1 NWLR (Pt.854) page 242; Lawani v. Oladokun (2003) 2 NWLR (Pt.804) page 271.

The jurisdiction of the court is determined by the plaintiff’s claim before the Tribunal not the letter of protest written by the appellant’s Counsel, but the petition in respect of the governorship election of 19/4/2003. Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt.854) page 406: Adeyemi v. Opeyori (1976) 9-10 SC 31; Okulate v. Awosanya (2000) 2 NWLR (Pt.646) Pg. 530.

I cannot end this contribution without passing a few remarks about the appellant’s brief. I find the brief very incoherent and unintelligible. It is not a dear presentation of the appellant’s case.

The most striking aspect of the brief is the amount of abusive language used against the Tribunal and the other Counsel in the petition. Counsel are paid to defend their client’s course they must exercise decorum in the process. Practice of law where counsel walk out on their clients in court, or where they are highly discourteous to court is a breach of professional ethics – which is the contributory factor to the falling standard in the practice of this honourable and disciplined profession. All members of the legal profession must rise in defence of their professional ethics – where much attention is paid to mutual respect. Counsel should spend more time in improving the quality of their briefs in the interest of justice.

With fuller reasons given in the lead judgment, I agree that the appeal lacks merit and it is dismissed accordingly. I abide by all orders made in the leading judgment, including the order on costs.

NGWUTA, J.C.A.: I have read before now, the lead judgment just delivered by my learned brother, Commassie, J.C.A and I agree with his Lordship’s reasoning and conclusions. I will, however, make a few remarks, if only for emphasis.

Learned Counsel for the respondents, by way of preliminary objection, urged the court to strike out the appeal on the grounds of abuse of process of court and incurable defects in the grounds of appeal and the issues formulated therefrom. Learned Counsel argued that the filing of three notices and grounds of appeal and pursuing one of them without withdrawing the others constituted abuse of court’s process. As a matter of fact the appellant did file three notices and grounds of appeal as follows:

(1) Notice filed on 11/4/05 against the decision dated 5/4/05 and 7/4/04 on two grounds of appeal.

(2) Notice with three grounds filed on 22/4/05 against the decisions dated 7/4/05 and 20/4/04.

(3) Notice and 4 grounds of appeal filed on 26/5/05 against the decisions dated 5/4/05, 7/4/05, 20/4/05 and 20/5/05. As rightly pointed out by learned counsel for the respondents appellant’s Counsel did not withdraw any of the notices.

However, learned Counsel for the appellant made it clear that the brief is predicated on the notice and grounds of appeal dated 26/5/05. See page 4 para. 11 of the appellant’s brief.

It would have been tidier for learned Counsel for the appellant to apply to withdraw the notices filed on 11/4/05 and 22/4/05, but his failure so to do cannot be a ground for striking out the appeal.

Rather the said notices are deemed abandoned and are hereby struck out. The giving of notice does not constitute of appeal in the appellate court. See Okey v. Abudu (1977) 12 CCHJ 2755 at 2757.

The whole purpose of grounds of appeal is to give notice to the other side of the case they have to meet in the appellate court. See B.P. (West Africa) Ltd v. Allen (1962) 2 SCNLR 388; (1962) All NLR 645 at 649; Bakare and Ors. v. The State (1968) 1 All NLR 364 at 371; Chamberlin v. Danfulani (1977) NNLR 9 at 13 – 14. Even if it can be said that the grounds of appeal and/or issues formulated therefrom are unsatisfactory the court will hear and determine the appeal in the interest of justice. See Okorie v. IGP (1966) LLR 134 at 135.

The respondents were not misled by the allegedly incompetent grounds and issues distilled therefrom. They had notice of the case they have to meet in the court and they responded appropriately. The courts will not sacrifice substance to form. See Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) Page 27 wherein the Supreme Court, per Oputa, JSC held that in the quest for justice, the court should not be inhibited by unnecessary technicalities, but should rather consider and deal with legal results of pleaded facts. The preliminary objections are over-ruled.

In the appeal, the application for warrant for the arrest of prospective witness who did not respond to the subpoena served on them is an invocation of the coercive power of the court. It is a criminal process that may lead to imposition of fine or term of imprisonment. It is the duty of the applicant for such warrant to satisfy the court that the two conditions imposed by S.229(2) of the Evidence Act are satisfied. It is not enough to show that the person on whom a subpoena was served did not attend at the time and place stated in the subpoena. In addition to proof of service of the subpoena there must be proof that the sum prescribed by law was tendered to him for his expenses. It is a legal requirements and the deposit of the sum with the registry of the court does not amount to a tender of the sum to the person subpoenaed. The status of the person subpoenaed vis-a-vis the sum prescribed and/or the distance he has to travel to come to court are not relevant to an application for warrant of arrest. Until there is evidence or tender of the prescribed sum to the person subpoenaed the court should not issue a warrant of arrest for failure to obey the summons or subpoena. The Tribunal did not descend into the arena by insisting on strict compliance with the Law before resorting to its coercive powers.

With due respect to learned Counsel for the appellant, the settled records do not contain any decision of the Tribunal “justifying the absence from court of the subpoenaed witnesses” The Tribunal merely declined to issue a warrant of arrest in absence of proof that the prescribed sum was tendered to the person against whom the warrant is sought. This has nothing to do with the alleged “presumed and unsolicited reasons” for disobedience to court’s command.

I also wish to comment on the affidavit in support of the motion for an order, inter alia, to set aside the ruling of 20/4/05 striking out the applicant’s motion.

In paragraph 2(f) of the affidavit deposed to by one Mr. Nyimbi Onemeze, it was averred:

“Dr. Tony Ukam is tired by the way the whole proceeding is (sic) being conducted by the respondent’s Council (sic) and the indulgence the Honourable Tribunal is granting them and has lost faith completely in the fair trial of this petition which confidence may be restored if the orders made on 5th, 7th, and 20th April, 2005 foreclosing the petition from inviting Donald Duke, INEC and NYSC for reasons best known to the respondents, is set aside.”

The averment is deliberately calculated to impugn the impartiality and ipso facto the integrity of the Tribunal. It is an attempt to blackmail the Tribunal into rescending its orders.

The Court or Tribunal is not above criticism. It is composed of human beings subject to frailties and imperfections. But this goes beyond criticism. It is an accusation of impropriety that is unwarranted and bereft of factual or legal foundation. Even if it can be said that learned Counsel did not draft the affidavit, he saw it, read it and filed it in court and relied on it.

Learned Counsel, qua advocate, cannot be restricted in his presentation of his clients’ case with all the strength and capacity at his disposal, but he must do this within the accepted tradition of our profession. The law does not allow him to discredit a court of law in the name or presenting his clients case. See UBA Ltd. v. Taan (1993) 4 NWLR (Pt.287) p.368 at 380-381.

The letter of 6/5/05 on the conduct of a member of the Tribunal and the bailiff attached thereto does not amount to a challenge to the jurisdiction of the Tribunal. It may raise the issue of bias but it clearly does not challenge the jurisdiction of the court as the authority the court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision. See Ndaeyo v. Ogunaya (1977) 1 SC 11; National Bank (Nig.) Ltd. v. Shoyoye (1977) 5 SC 181; A.-G., Federation v. A.-G., Abia State & 35 Ors. (2001) 11 NWLR (Pt. 725) 689; (2001) 7 SC p. 100. On the other hand bias is an inclination or bent or preconceived opinion or predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. See Nwakoro v. Onuma (1990) 3 NWLR (Pt.136) p. 22. In any case however, the letter may be construed it did not relieve the appellant’s counsel of his duty to be present in court on the date to which the case was adjourned at his instance.

In the chequered history of the case and the need for expeditious disposal of the election, see para 51 of the 1st schedule to Electoral Act, 2002, the Court was right to have closed the appellant’s case in absence of cogent reason for Counsel’s absence and the absence of the appellant to conduct his case in absence of his counsel.

My Lords, to hold that the applicant’s/appellant’s letter challenged the jurisdiction of the Tribunal will lead to the absurdity of a party conferring jurisdiction on, or withdrawing same from court by mere expression of confidence or lack of it from the court.

For the reasons given above (excluding comment on the conduct of learned Counsel) and the fuller reasons in the lead judgment, I also dismiss the appeal as devoid of merit. I abide by the orders in the lead judgment.

Appeal dismissed.

Appearances

Tony UkamFor Appellant

AND

Chief Wole Olanipekun(SAN)( with him