ACTION ALLIANCE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.

ACTION ALLIANCE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.

final 
In The Court of Appeal
Ibadan Judicial Division
On Thursday, the 5th day of January, 2012
Suit No: CA/I/EPT/GOV/24/2011
 
Before Their Lordships
 
RAPHAEL CHIKWE AGBO    ……. Justice, Court of Appeal
CHIOMA EGONDU NWOSU-IHEME……. Justice, Court of Appeal
JOSEPH SHAGBAOR IKYEGH    ……. Justice, Court of Appeal
HARUNA M. TSAMMANI    ……. Justice, Court of Appeal
MOHAMMED A. DANJUMA    ……. Justice, Court of Appeal
    
 
 Between
ACTION ALLIANCE    Appellant
            
 
      And
                   
INEC & ORS.    Respondents

 


        
 
                  
     
COUNSEL:
                              
Bolarinwa Lawal with Sunday Akinkunmi    For the Appellant

                              
Ahmed Raji Esq., with O. Adeoti Esq., and J. D. Rufai for the 1st Respondent.
M. F. Lana Esq., with K. P. Gbadamosi Esq., for the 2nd and 5th Respondents.
Titilola Dauda Esq., for the 4th Respondent.    For the Respondents

          
          
JUDGMENT:

        
MOHAMMED A. DANJUMA, J.C.A.:
(Delivering the Leading Judgment): This is an appeal against the Ruling of the Governorship Election Tribunal sitting in Ibadan in Petition No.EPT/GOV/24/2011 between Taiwo Ibiyemi Otegbeye, and 22 Others Vs. Independent National Commission and 25 Others delivered on 10th November, 2011.

The Ruling of the lower court is contained at pages 116 – 119 of the Record of Appeal.

The 1st and 2nd Petitioners i.e. Taiwo Ibiyemi Otegbeye and Alhaja Sikirat A. Abdulsallam together with one Segun Oyewole of the Accord Party had filed a Motion on Notice dated 7/7/2011 to withdraw their petition against the 2nd and 3rd Respondents only. The said 2nd and 3rd Respondents in the said petition and motion are Senator Isiaka Abiola Ajimobi; then the ACN Governorship candidate.

The 3rd Respondent is one Moses Adeyemo also of the ACN (He was the Deputy Governorship candidate). They are also the 2nd and 3rd Respondents in this appeal,

By the said Motion the Applicants had prayed for the withdrawal of the petition against the Respondents indicated and also for an order striking out the Applicants' names as Petitioners upon withdrawal.

The said Motion was heard and determined; wherefore it was ordered as prayed.

See pages 40-41 of the Record of Appeal wherein at page 2 of the Ruling, the following appears-

"It is therefore ordered that the application for leave to withdraw their petition against the 2nd and 3rd Respondents in this suit/petition and also striking out the names of the 1st and 2nd Applicants is hereby granted. 1st and 2nd Applicants of this petition are hereby struck out while the petition against the 2nd and 3rd Respondents is also struck out".

Having struck out the parties as prayed, the Honourable Tribunal, suo motu ordered that it be addressed on the fate of the petition, as to whether the said petition still subsisted in law and before the appropriate forum for trial as there was no longer the Governorship candidate and it's Deputy in existence in the said petition to clothe it with the vires or jurisdiction to adjudicate upon as a Gubernatorial petition.

After a succinct address by the respective parties, a succinct Ruling contained at pages 43-44 of the Record was delivered striking out the entire petition on the ground that the Tribunal being a Governorship Tribunal lacked the jurisdiction to proceed in trial and also that it had no jurisdiction or power to transfer the petition to the appropriate Tribunal as the exclusivity of the jurisdiction of the respective Tribunals were clear cut and the power of transfer was not available under the applicable Federal High Court Civil Procedure Rules to be exercised by the said Tribunal.

On the 9th October, 2011 i.e. 3 months 2 days after the Ruling delivered on 7/7/2011, the Appellants who were Petitioners/Applicants as aforesaid, discovered the irregularity and defect in the withdrawal of the petition and decided to have a recoil after a meeting. See pages 7-11 of the record.

By an application dated 24/10/2011 and filed 27th October, 2011, the Appellants had prayed amongst other reliefs for the relisting of the said petition struck out.

See pages 2-19 of the record. The said application for relisting was heard and dismissed on 10th November, 2011.

It is against the refusal to relist the petition that the Appellants felt irked and aggrieved; and have thus lodged this appeal, as contained in the Notice of Appeal appearing at pages 120-124 of the record. It was filed on 17/11/11.

The Appellants filed their brief of argument dated 8/12/11 on the 9th December, 2011 and a Reply brief of argument on 21/12/11 by leave of Court granted thus deeming same as properly filed and served within time.

The 1st Respondent filed his brief of argument on 14/12/11. It is dated 12/12/11. The 2nd and 5th Respondents filed their joint brief of argument on 21/12/11, while the 4th Respondent filed its brief of argument on 20/12/11. At the hearing the Appellant's learned counsel adopted their briefs of argument and urged that the appeal be allowed, while each set of Respondents respectively urged that the appeal be dismissed. The Petitioners/Appellants had formulated 5 issues for determination, to wit:

"a. Whether the withdrawal by the 1st and 2nd Petitioners in petition No.EPT/OY/GOV/2/11 before the lower court precluded or robbed the lower court of jurisdiction to continue to hear and determine the petition.

b. Whether the lower court lacks jurisdiction where the cause of action subsists and is within its jurisdiction.

c. Whether the non inclusion of 3rd – 22nd Petitioners and 4th – 23rd Respondents in petition No.EPT/OY/GOV/2/2011 in the application to relist preclude (sic) or rob the lower court of jurisdiction.

d. Whether the Appellant's Petition was worthy of being restored to the cause list.

e. Whether the Petitioner was given fair hearing having been shut out of hearing in petition No.EPT/OY/GOV/2/2011."

The 1st Respondent appears to have formulated only 2 issues for determination; even though he did not so state in his brief nor indicated the issue No,1, but there appears an address on the appearance and address of a counsel and its binding effect on his client and a 2nd issue so indicated.

The 2nd and 5th Respondents on their part formulated 5 issues for determination. They are as contained in their brief of argument.

The 4th Respondent also formulated 2 issues for determination.

Having carefully studied the Record of Appeal, and in particular the Grounds of Appeal, I am of the view that the 5 issues formulated by the Appellant are apt for the determination of this appeal as it covers also the issues formulated by the Respondents and arise from the decision appealed against. I shall therefore adopt the Appellants formulation of issues seriatim in the treatment and determination of this appeal.

Issue No.1 -

Whether the withdrawal of the 1st and 2nd Petitioners in petition No.EPT/OY/GOV/2/11 precluded the lower court to hear the petition.

In his brief of argument the Appellant, i.e. the Labour Party, which was one of Applicants/Petitioner at the trial, has submitted on its behalf that withdrawal of the 1st and 2nd Petitioners in the said petition was not conclusive as it did not extinguish the petition nor rob the Tribunal of jurisdiction to proceed.

Two issues had been propped up following the said application to withdraw the petition. They are these: The 2nd and 3rd Respondents, who were the Governorship and Deputy Governorship candidate of the Action Congress of Nigeria, had been withdrawn. The petition was a Governorship petition and against them as beneficiaries. Appellant has by its counsel had its name struck out upon the withdrawal of the petition by its counsel through a Motion to that effect.

The action of its counsel binds it and it cannot be heard to complain otherwise, as counsel had not been shown to have acted outside the ordinary course of his professional duties. In Adewunmi Vs. Plastex Ltd. (1986) 2 NWLR Pt.32 page 767 at 788, Eso, JSC. (as he then was) stated as follows:

"Once a counsel appears in Court in a case and announces his appearance, the Court assumes he has the authority of his client for the conduct of the case…… It is not for the Court to start an inquiry into his authority and the Court never does. ….. Apart from that, and this accord with common sense, apart from the profession he has full control over the conduct of the case,"

 

The Appellant herein was in the application to withdraw the petition a co petitioner. A counsel appeared for it and specifically sought that, the Appellant then as 23rd Respondent and 1st and 2nd Petitioners/Applicants be withdrawn and struck out of the petition.

"When a party's name is struck-out the allegation made against that person fades and automatically dissipates as the decision of the Court in striking out the name therefore constitutes the end of that party as far as his or its involvement in the case is concerned. The name of a party is struck out by the party that joined it, or the affected party and invariably it is a decision of the Court of the considering other factors.

The consequence of the complaint against a party whose name is struck out is that he is no longer a party as his exclusion would not affect the party who brought him adversely particularly when the party consents to his removal from the suit either by act of commission or doing nothing i.e. omission. It would mean too that he has no case to answer as his presence is not considered necessary for the final determination of the case." See Obasanjo Vs. Yusuf 2004 120 LRCN 4596 At 4563 K-2.

On the basis of the aforesaid decision of the Supreme Court and common sense, I would hold that a Petitioner who as an applicant has had his name struck our as a party also has no case to litigate as his presence is not considered necessary in the determination of the case.

 

Also when a matter is struck out for want of jurisdiction, the striking out finally disposes of the matter or appeal as the case may be. See Ehuwa Vs. Ondo State INEC & Ors. 2007 149 LRCN 1543 at 1562 per Oguagu JSC. (2011) 5 NWLR Pt.1239, page 45 at page 72 Part F.

 

The request, having been granted, binds the Appellant. It cannot approbate and reprobate; as a party must be consistent in the conduct of his case both at the trial and on appeal. A party or litigant cannot be allowed to set up a different or conflicting case at the hierarchy of the Courts as that would be fraudulent and unconscionable.

The Supreme Court had pointedly stated the position of the law to be that *A party should be consistent in the presentation of his case. He cannot present a different case in an interlocutory action/appeal from that he presented at the trial. Approbating and reprobating is frowned at by the law. See NECO Vs. Takode. Such an application will be deemed incompetent. See Gombe Vs. PW Nigeria Ltd. (1995) 6 NWLR (Pt.402) 402, Chikwe Ilo Vs. Nwali (1998) 8 NWLR (Pt.560) 144, Adenuga Vs. Odumeru (2001) 2 NWLR (Pt.698) 184 and Stallion (Nig) Ltd. Vs. EFCC (2008) 7 NWLR (Pt.1087) 461, Iyen Vs. FRN 2010 2 NWLR Pt.1177, page 1 at Part 16 paragraphs D-F.

The petition having been struck out upon the Appellant's learned counsel's application, he was bound by the outcome, even as the Court or Tribunal became functus officio and had no jurisdiction to relist the said petition any longer.

 

The 1st issue is therefore answered in the positive, i.e. that in the circumstances the Tribunal lacked jurisdiction to relist the petition and the Appellant was bound by the outcome of his application in that respect.

On the 2nd issue, it is pertinent to observe that the Appellant referred only to minutes of meeting of the Appellant wherein the subject of complaint was said to be a complaint appertaining exclusion of the Appellant's logo from the Ballot Papers by INEC (one of the Respondents); similar references were made' to witnesses' statement on oath and address of counsel to Appellant as Applicant as contained in the Record. No reference whatsoever to the Petition itself – which copy is not contained in the Record of proceedings. The cause of action is as disclosed in a Petitioners Petition or claim. None having been enclosed in the record of appeal the reference to a cause of action in this appeal as in issue 2 is of no moment. I see it as an academic exercise, therefore the issue is accordingly discountenanced as it is unsubstantiated.

 

On issue No.3 it is trite that the non inclusion of all the original parties in a suit in an application to relist strips the court of jurisdiction as it will be an incompetent application without all the parties. To relist a suit simply means to bring the suit back to life and on to the cause list as originally depicted. This, therefore, takes us to the 4th issue which must be answered. In the negative too i.e. that the Appellant petition was not worthy of being restored on the cause list of the Tribunal.

Indeed, with the striking out of the names of the 1st and 2nd Respondents the petition if couched against the exclusion of the Appellant's name in a Governorship Election petition, is claimed, was for that reason not properly before the lower Tribunal which had no jurisdiction to hear and determine petitions in respect of any complaint appertaining to National/State Assembly election. Section 285 (2) of the 1999 Constitution provides as follows:

"There shall be established in each state of the Federation one or more election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any Court or Tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of a Legislative House."

The complaint of the Appellant as Petitioner in a petition wherein its Governorship and Deputy Governorship candidate were parties was, no doubt, a complaint against the election of the 1st and 2nd Respondents who were contestants in challenge or in same contest with them on ground of invalidity for the exclusion of their party logo. Certainly the only Tribunal seized of jurisdiction was the Governorship and Legislative Houses Election Tribunal.

That Tribunal having become functus officio ceased to have powers to adjudicate over a matter that it could not even relist; the other erstwhile Parties or Litigants had no forum litis in the said Tribunal also. It is imperative to observe that the learned counsel for the Appellant at paragraph 03.5 of his brief of argument admits that the National and State House of Assembly Election Tribunal was the only Tribunal with exclusive original competence or jurisdiction over the 3rd – 22nd Petitioners and the 4th – 23d Respondents by virtue of Section 285(1) of the 1999 Constitution. That being the case the trial Tribunal had no power to transfer the Petition of the surviving parties to it, even if it had not struck it out. The reason is that there is no power of transfer by a Tribunal or Court that lacks jurisdiction. All that a Court can do after it ceases to have jurisdiction or to be seized of jurisdiction is to strike out the action.

 

Now to the 5th and last issue. This is whether there was no infringement of the right of fair hearing.

Appellant's learned counsel referred to the case of Ekoeto Vs. Wanogho (2O05) 2 MJSC page 67 ratios 2 and 3 at 73-74 and submitted that there was a breach of this right. I fail to see any breach.

To the contrary, the Appellant who acted by counsel applied for withdrawal of petition inclusive of himself as a Petitioner!

2nd and 5th Respondents in their brief of argument were therefore right when they argued at paragraph 7.00 of their issue (E) that the issue of fair hearing does not arise as the Appellants deliberately withdrew the petition. It is re-enforcing that its candidate and members swore to counter affidavit opposing the relisting of the petition. See pages 63-72 of the records.

On 13th July, 2011. Tunde Anifowose, the chairman of the Appellant represented the Appellant when the motion for withdrawal was moved"

See page 39 of the records. The same Anifowose swore to the counter affidavit to oppose the application to relist. See page 66 of the record. What breach of fair hearing has been caused? The twin pillars of fair hearing are that you shall not be a judge in your own case or cause and secondly, that you shall listen to the other side.

This violations must be proved or demonstrated before a complaint, relating to breach of fair hearing can be entertained. For as the apex (Supreme) Court pointed out in Gbadamosi Vs. Daito (2907) Vol.145 LRCN 508 at pages 52300 A524A per the concurring judgment of Tobi JSC "Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, the breach of which will nullify the proceedings in favour of the victim. The Constitutional guarantee is construed in the light of the facts of the case and the facts alone. It cannot be construed outside the facts. Accordingly, a party alleging the breach must show from the facts of the case that the right is violated or breached. With respect the Appellant has not demonstrated in his brief that the right was violated or breached."

 

The situation in this appeal fits into this reasoning of the Supreme Court. I apply same to this appeal as apt in holding a contrary view that there was no breach of fair hearing at the trial proceedings leading to the refusal to relist the petition.

This Court will not, therefore, interfere with the discretion of the trial Tribunal in striking out and in refusing to relist the said Petition as it would not only be wrong but unjust and inequitable as the Appellant who had taken a course by which he was bound and in respect of which the Tribunal no longer had jurisdiction to revisit, appears to be taunting this Court and oppressing the Respondents by bringing this appeal – which in effect seeks to have the petition which was rightly struck out to be relisted by an incompetent Tribunal for a trial, well after the effluxion of the 180 days limited for the hearing and determination of an election petition. A petition not determined within 180 days from the date of filing of the petition would cease to agitate life issues. It must be considered moribund and dead.

See Section 285(7) 1999 Constitution and the unreported decision of the Supreme Court in Peoples Democratic' Party Vs. Congress for Progressive Change and 41 Ors.

 

Before concluding, I should state that the raising of a preliminary objection and address thereon by a party as done by the 2nd and 5th Respondents at paragraph 2.00 of their brief of argument is incompetent and ought be accordingly struck as it did not comply with Order 10 Rule 1 of the Court of Appeal Rules 2011 that requires that every preliminary objection shall be by a 3 days Notice filed and served on the adverse party and may there after be argued in the brief distinctly.

The purpose of the Notice is to ensure that the adverse party is not taken by surprise as the success of the objection terminates the appeal or case.

The absence of the Notice therefore renders the preliminary objection incompetent. See Nwaolisah Vs. Nwabufoh (2011) 14 NWLR 600, Menakaya Vs. Menakaya (1994) 5 NWLR (Pt.345) 512. The objection is therefore struck out as incompetent.

 

In conclusion, it is reiterated that it is for the foregoing reasons set out that I had on the 21st day of December, 2011 held that this appeal is grossly devoid of merit and must fail.

The appeal fails and is dismissed. Consequentially the Ruling appealed against refusing to relist the petition is affirmed.

 

 

RAPHAEL CHIKWE AGBO, J.C.A.: On 21st December, 2011 we dismissed this appeal and said we would give reasons for our judgment later. We later as a panel agreed on the reasons and mandated our brother Danjuma J.C.A., to articulate the said reasons. This he has done this afternoon and I accept the reasons set out as wholly mine. This is one of the most irresponsible appeals I have met so far. Counsel having discovered that this court had lost the jurisdiction to entertain any appeal from the decision of the trial tribunal avoiding the petition has taken the courts through these unholy proceedings. Once a court or tribunal determines that it has lost jurisdiction the only recourse that can avail an aggrieved party is to exercise his right of appeal. Once the appellate court loses its jurisdiction, you cannot circumvent it by seeking a setting aside instead. This appeal is bereft of any merit.

 

 

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree

 

 

JOSEPH SHAGBAOR IKYEGH, J.C.A.: On 21.12.2011, I summarily dismissed the appeal and promised to give my reasons for the dismissal of the appeal today. These are my reasons. I have read in advance the judgment of my learned brother, Danjuma, J.C.A., with which I am in agreement.

Election petition cases are time bound. By section 285(6) of the Constitution of the Federal Republic of Nigeria 1999, as amended, the Lower Tribunal was bound to hear and deliver judgment in writing in a Petition filed before it within One Hundred and Eighty (180) days from the date of the filing of the Petition.

The Petition was filed on 17.5.2011, It was struck out on 13.7.2011. The Motion on Notice praying for its relistment was filed on 27.10.2011. The Appellant waited for over three months between 13.7.2011 and 27.10.2011 before filing the application to relist the Petition. The lower Tribunal had less than three days left at the time of the hearing of the application for relistment, to determine the application and the Petition, in the event the petition was relisted.

From the circumstances stated above, the lower Tribunal was, in my respectful opinion, right in holding inter-alia that:

"Reasonable time is time in our opinion necessary and convenient that is one dictated by reason with law and common sense, bearing in mind the peculiar nature of the instant proceedings which is an election petition wherein time is of essence. We consider this application brought more than three months after our decision/ruling and with barely two days to the expiration of the time stated by the Act (Constitution) for the determination of all election matters as grossly unreasonable."

The equitable maxim 'delay defeats equity' or 'equity aids the vigilant not the indolent' applied to the conduct of the Appellant who was not diligent in bringing the application for relistment of the Petition at the earliest opportunity or with great promptitude before the lower Tribunal.

For the full reasons given by my learned brother, Danjuma, J.C.A., in the judgment just delivered and, for the reason given above, I too find no merit in the appeal and hereby dismiss it. I abide by the consequential orders contained in the said lead judgment.