KENNETH NDUKA AGBAKWURU & 1 OTHER v HON. RAPHAEL NWANNA IGBOKWE & 1 OTHER (CA/OW/EPT/45/2011) [2012] NGCA 15 (27 February 2012)

UWANI MUSA ABBA AJI

....... Justice, Court of Appeal

MOJEED ADEKUNLE OWOADE

....... Justice, Court of Appeal

HARUNA M. TSAMMANI

....... Justice, Court of Appeal

1. KENNETH NDUKA AGBAKWURU 
2. LABOUR PARTY

Appellants

1. HON. RAPHAEL NWANNA IGBOKWE 
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION

Respondents

RATIO DECIDENDI

1

APPEAL - ADDITIONAL/SUPPLEMENTARY RECORD OF APPEAL: Whether it is only the Respondents that can compile and transmit additional or supplementary record of appeal, and not the Tribunal Secretary or the Appellant

"I have carefully perused the provisions of order 8 rule 6 of the Court of Appeal Rules, 2011. Clearly, that provision deals with compilation of additional record by a respondent. It has nothing to do with an Appellant or the Secretary of the trial Tribunal. It is trite law that, it is the duty of an appellant through the Registrar or Secretary, as the case may be, to produce the records which he seeks to challenge in court. I agree with learned Appellant's senior counsel that there is nothing under the rules of this court prohibiting the Secretary or Registrar, to compile and transmit a Supplementary Record, where such has been omitted in the original compilation made and transmitted." Per TSAMMANI, J.C.A. (Pp. 30-31, paras. G-C)

2

APPEAL - GROUND OF APPEAL: Basis of a ground of appeal

"It is trite law that, a ground of appeal must not be formulated in abstract, but must arise or relate to the judgment appealed against. In other words, a ground of appeal must be against a ratio decidendi of the decision relating to the judgment appealed against. Accordingly, a ground of appeal must be connected with the controversy between the parties. See EGBE v. ALHAJI (1990) NWLR (pt. 128) pg. 546 at 590; M. B. N. PLC v. NWOBODO (2005) 14 NWLR (Pt.945) Pg.379 and IKENTA BEST (NIG) LTD v. A.G. RIVERS STATE (2008) 6 NWLR (Pt. 1084) P. 612. Where a ground of appeal does not relate to the ratio decidendi of the decision appealed against, it is liable to be struck out." Per TSAMMANI, J.C.A. (Pp. 28-29, paras. F-B)

3

APPEAL - NOTICE OF APPEAL: Contents of a Notice of Appeal; effect of a defective notice of appeal

"Now, Order 6 rule 2(1) of the Court of Appeal Rules, 2011 stipulates that: "All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called "the notice of appeal") to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sough ...". It is therefore clear from the above stated rule of the Court of Appeal Rules, that a notice of appeal is the process that originates an appeal, and therefore, the very foundation of an appeal. Accordingly, if it is defective, it is likely to be struck out by the Court of Appeal as being incompetent. See AMADI v. OKOLI (1977) 7 SC Pg. 57; NWANWATA v. ESUMEI (1998) 8 NWLR (Pt. 563) Pg. 630 at 667 and KOREDE v. ADEDOKUN (2001) 15 NWLR (Pt. 736) Pg. 483 at 495-496. That being so, it is a requirement of order 6 r 2(1) of Court of Appeal Rules, 2011 that, a valid notice of appeal must state the decision of the court complained of; whether it is the whole decision or a part thereof. Thus, any notice of appeal which fails to state or specify that part of the decision or judgment complained of is incompetent. See NIGER CONST. LTD v. OKUNGBEMI (1937) 4 NWLR (Pt. 67) pg. 787 and OSEYOMON v. OJO (1993) 6 NWLR (Pt. 299) Pg. 344. In the instant appeal, the complaint of the Respondents, as I understand it is that, what the Appellant complains of is on "the petition" and not "the decision" of the Tribunal. True enough, a cursory reading of paragraph 2 of the Notice of Appeal would show that, what the Appeal complaints against is "the whole petition" and not "the whole decision". The issue now is, would that be such as to render the appeal incompetent. To answer this poser, I would agree with learned counsel for the Appellants that, the whole of the Notice of Appeal should be considered in construing Paragraph 2 of the Notice of Appeal. If that is done, it would be obvious that, what occurred in the said paragraph 2 is either an oversight of counsel or a typographical error. In either case, that vice should not be allowed to render the appeal incompetent especially when the operative or opening part of the Notice of Appeal clearly indicates that the appeal is against the decision of the Election petition Tribunal ... sitting at Owerri on the 29/9/2011. Surely, the dictum of the Supreme Court, per Niki Tobi; JSC in ABUBAKAR v. YAR'ADUA (Supra) should assuage the Respondents when he said at Pg. 511 Para. B of the Report that: "It is a known "fact that blunders must take place in litigation process and because blunders are inevitable, it is not fair, in appropriate cases to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case". Per TSAMMANI, J.C.A. (Pp. 25-27, paras. D-C)

4

INTERPRETATION OF STATUTE - PARAGARPH 4(3) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED): The provision of Paragraph 4(3) (b) of the First Schedule to the Electoral Act, 2010 (as amended) with respect to whether an election petition must be signed by either the petitioner or all the petitioners, or by the solicitor, if any, named at the foot of the petition

"Now, Paragraph 4(3) (b) of the First Schedule to the Electoral Act, 2010 (as amended) provides that: "The election petition shall further- (a) ... (b) be signed by the Petitioner or all Petitioners or by the Solicitor, if any, named at the foot of the election petition. " By paragraph 4(3) (b) of the First Schedule to the Act therefore, it is a mandatory requirement, and thus a condition precedent that, the petition be signed by either the petitioner or all the petitioners, or by the solicitor, if any, named at the foot of the petition. In determining the relevant petition in case of a dispute on whether the petition is signed, it is the original copy of the petition filed or lodged in the Tribunal's Registry, and on which necessary fees have been assessed and evidence of payment of the fees for the petition have been endorsed, that will be considered. See BALONWU v. IKPEAZU (2005) 13 NWLR (pt.942) PG. 479 at 520. In the instant case, it is true that the copy or copies of the petition relied on by the Tribunal in determining the 1st Respondent's objection had on the signature column, "original signed by me, Chief M. I. Ahamba KSC, SAN". In the case of WILLIAM v. TINUBU (supra) cited by the 1st Respondent, where a similar situation arose, this court held the petition incompetent, as it tantamounts to the petition not being signed at all. However, in the case of CHIEF ACHIKE UDENWA & ANOR v. CHIEF HOPE UZODINMA & ANOR (unreported) No: CA/OW/EPT/27/2011 delivered on the 17/10/2011, this court had recourse to the original petition filed before the Tribunal to resolve the issue. In the same manner, we have considered the Supplementary Record of Appeal filed before us on the 9/11/2011, containing original petition. It is clear that the original petition as filed in the Tribunal Registrar was duly signed by chief M.I. Ahamba, KSC, SAN. There is no dispute on that fact. In that respect, I see no reason for over-flogging the issue. I accordingly hold that the petition in this case was duly signed as required by paragraph 4(3) (b) of the First Schedule to the Act (supra)." Per TSAMMANI, J.C.A. (Pp. 42-43, paras. A-C)

5

INTERPRETATION OF STATUTE - PARAS. 47(1), 53(2), (3), (4) AND (5) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED): The interpretation of Paragraphs 47(1), 53(2), (3) and (5) of the First Schedule to the Electoral Act, 2010 (as amended) with respect to whether motions or objections on points of law in an election petition, can only be taken and determined at the pre-hearing session

"I think the resolution of this issue borders on the interpretation of Paragraphs 47(1) and 53(2) and (5) of the First Schedule to the Electoral Act (supra). Accordingly, I find it necessary to produce those provisions here. "47 (1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or court. 53.(2) Application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect. (5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings". Now, Paragraph 47(1) of the First Schedule to the Electoral Act (supra) clearly stipulates that, all motions shall be heard at the prehearing session. Despite this provision, the Respondents insist that since their motion or objection before the Tribunal concerned the jurisdiction of the Tribunal to hear and determine the petition, it was properly taken before the Tribunal at the time it was taken. They also contend that the said paragraphs 47(1), 53(2) and (5) cannot take away their right to raise the jurisdictional issue, which they can exercise at anytime and anyhow. I wish to point, out here that, the Respondents' objection before the Tribunal was on the competence of the petition. Surely, the general effect of an incompetent petition is that it automatically divests a tribunal of jurisdiction and brings the matter at an end. In that case, it is not a matter of mere irregularity or defect, but that of jurisdiction. I point out this fact considering the nature of the objection raised before the Tribunal. It was on the issue of signing of the petition, which is a requirement to the competence of the petition under Paragraph 4(3) (b) of the First Schedule to the Electoral Act (supra). Signing of a petition is therefore a condition precedent to the validity or competence of the petition, and thus an issue of jurisdiction. See EMEJE v. POSITIVE (2010) 1 NWLR (Pt. 1174) Pg. 48 at 71. I think it is on that score that the Respondents have relied heavily on the dictum of Tabai, JSC in OKEREKE v. YAR'ADUA (supra) on the nature of jurisdiction. I wish to most humbly point out that the statement was made by His Lordship in contribution to the lead judgment delivered by Mohamed JSC. Delivering the lead judgment in that case, Muhamad, JSC said; "The Paragraph above has made an outright prohibition of moving motions before the tribunal or court except if it is at the pre-hearing sessions or where extreme circumstances are shown and leave of the tribunal or court was sought and obtained." That case was decided under Paragraphs 6(1) of the Practice Direction, 2007, which is in Pari materia with Paragraph 47(1) of the First Schedule to the Electoral Act, 2010 (supra). As rightly pointed out by Chief Ahamba, SAN of learned counsel for the Appellants, despite his dictum in the case, His Lordship, Tabai, JSC did not dissent to the lead decision quoted above. Indeed, the Supreme Court reiterated that position as postulated by Muhammad, JSC in the case of NWANKWO v. YAR'ADUA (2010) 12 NWLR (Pt. 1209) Pg. 518 at 599. Therein, the Supreme Court in the lead judgment delivered by Onnoghen, JSC, confirmed this position when he pointed out at pg. 559 paras. B-D that, motions or objections on points of law in an election petition, can only be taken and determined at the pre-hearing session, and that any motion or preliminary objection raised in an election petition not taken and determined at the pre-hearing session is done without jurisdiction and therefore null and void. Incidentally, Tabai, JSC agreed with that position in the recent case of ABUBAKAR & ORS v. NASAMU & ORS (supra) cited by learned senior counsel for the Appellants." Per TSAMMANI, J.C.A. (Pp. 36-38, paras. C-G)

6

COURT - POWER OF COURT: The special powers granted the Court of Appeal under Section 16 of the Court of Appeal Act, 2011

"Now, Section 16 of the Court of Appeal Act grants this court special powers which include, the power to assume full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance. Such power extend to the power to rehear the case in whole by considering the evidence or material, and the addresses filed by the parties before the lower court or Tribunal in order to deliver judgment in the matter as the justice of the case demand. However, before this court can exercise such special powers, certain conditions must exist. Such conditions were stated in the case of OBI v. INEC (supra) at Pg. 639 Paras. F-C per Aderemi, JSC. one of such conditions is that, the lower court must have had the legal power to adjudicate in the matter before the appellate court can entertain it. In other words, the court below must have got the jurisdiction to entertain the suit. The Respondents contend that, we cannot exercise the special powers granted by section 16 of the court of Appeal Act, because the lower tribunal had no jurisdiction to hear the petition at the time we pronounced judgment, the petition having lapsed on the 25/10/2011. I have carefully read and reflected on the Supreme Court decisions cited by learned senior counsel for the 1st Respondent on the issue. I wish to point out that before the full reasons of this court could be given for the judgment in this appeal, the Respondents filed a motion before us seeking that our judgment be set aside. The said motion was filed on the 29/11/2011.This court delivered ruling on the said motion on the 10/2/2011. My learned brother M. A. Owoade, JCA, who delivered the lead ruling in his usual erudition held thus: "The circumstances of the SHETTIMA v. GONI interlocutory appeal is different from that of the present case where (1). we are concerned with a situation of the judgment of the Court of Appeal from a final decision of the Election Petition Tribunal; (2) Given the result unlike the SHETTIMA v. GONI case (supra), that the Election Petition Tribunal became functus officio and has indeed totally put its hand off the "filed petition". In this respect, unlike the SHETTIMA v. GONI case, any reversal or corrective order by the Court of Appeal has nothing to do with the 'filed petition" which has infact been disposed off by the Tribunal. Here, the combined effect of the provision of Section 246 and 6(1) of the 1999 Constitution (as amended), Section 15 of the Court of Appeal Act and Order 4 Rule 9 of the Court of Appeal Rules, 2011 empower the Court of Appeal to make fresh orders in relation to the "filed petition". My learned brother, Owoade, JCA went on to positively postulate as follows: "In order words, a community reading and harmonious interpretation of Sections 285(6) and 246 of the constitution would produce the following: (i) .. (ii)In the operation or application of Section 246 of the 1999- Constitution (as amended) the Court of Appeal is entitled to exercise all the judicial powers of the Federation as vested in it by Section 6(1) of the Constitution. The judicial powers of the Court of Appeal include power to rehear the case in whole or in part pursuant to Section 15 of the Court of Appeal Act and order 4 Rule 9 of the Court of Appeal Rules" See AGBAKWURU & ANOR v. IGBOKWE (unreported) No: CA/OW/45M/2011 delivered on the 10/2/2011 at pages 11-12. I adopt the reasoning of my learned brother in the resolution of this issue. I therefore hold that this court has the jurisdiction to exercise its special power under Section 16 of the Court of Appeal Act, 2011 to rehear and determine this petition, the lower Tribunal having failed to do so." Per TSAMMANI, J.C.A. (Pp. 46-49, paras. G-C)

7

ELECTION PETITION - PRESENTATION OF ELECTION PETITION: Grounds upon which an election may be questioned

"I had pointed out that the ground for the Petition is that the 1st petitioner/Appellant was validly nominated but was unlawfully excluded. That falls within Section 138 of the Electoral Act, 2010 (as amended). It stipulates as follow: 138. (1) An election may be questioned on any of the following grounds that is to say:- (a) ... (b) ... (c) ... (d) that the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election. That is why, the 1st Respondent in his final address before the Tribunal, which is contained at pages 172-190 of the record of appeal, contended that in his view, the main issue that arose for determination in the petition is: "Whether the 1st Respondent was validly nominated to contest the April 2nd (now 9th) 2011 election." The Respondents therefore questioned the emergence of the 1st Appellant as candidate for the 2nd Appellant for the election. That, it was one Anthony Okeiyi who emerged as the winner of the 2nd Appellant's primary election and therefore the substitution of his name for that of the 1st Appellant was in breach of Section 33 of the Electoral Act. It should however, be noted that, it is only a member of the same political party that has a right of action or locus standi to sue for being wrongly or unlawfully substituted or changed. The right to sue on that ground is not a global right, but is one restricted as a purely domestic affair between members of the same political party and INEC to sort out in a court of law, if need be. See ZARAIYDA v. TILDE (2008) 10 NWLR (Pt. 1094) Pg. 184 at 207. The Respondents therefore have no right to question the nomination of the 1st Appellant on this ground. In any case, the said Anthony Okeiyi has not contested such substitution. Furthermore, an over-view of the submissions of the Respondents in their Written Addresses vis-a-vis the evidence led at the trial show clearly that, the Labour Party (2nd Appellants) duly nominated the 1st Appellant as its candidate for the election. The 1st Appellant duly filed the requisite Nomination Form and forwarded same to INEC. Furthermore, the 2nd Appellant entered into various correspondences with the 2nd Respondent, whereof the name of the 1st Appellant was listed as the candidate of the 2nd Appellant. See Exhibits C, D, and H. To further support the Appellants, the said Chief Anthony Okeiyi who won the Labour Party primaries had withdrawn his candidate vide Exhibit G. It is clear therefore that the 2nd Respondent is bound by the contents of Exhibit E and H which contain the name of the 1st Appellant as the candidate of the 2nd Appellant for the House of Representative seat to represent Ahiazu/Mbaise/Ezinihitte Federal Constituency. There is no evidence on the record to show that any person ever challenged the candidature of the 1st Appellant before the election. There is also nothing to indicate that the 2nd Respondent had rejected the candidacy of the 1st Appellant. Indeed, exhibits E and H proof otherwise. I accordingly, find proved or established from the evidence on the record that, the 1st Appellant was validly nominated by the 2nd Respondent to contest the election in question. Having thus found, Exhibit "J" which is a ballot paper used at the election show that the 2nd Appellant and its candidate (1st Appellant) were excluded from the election. A cursory perusal of the said Exhibit "J" show clearly that the logo of Labour Party (2nd Appellant) is conspicuously missing on the ballot paper. The Appellants timeously complained to the 2nd Respondent vide Exhibit "K" and "L", but the said Respondent did not react. I therefore hold that the omission by the 2nd Respondent to indicate the Logo of the 2nd Appellant on the Ballot paper amounted to exclusion of the Appellants from the election. The Appellants have therefore been able to establish from the evidence on the record that 1st Appellant was validly nominated but was unlawfully excluded from the election. It is for the above stated reasons that on the 25/11/2011, we pronounced judgment on this appeal, annulling the election conducted on the 9/4/2011 and ordered the 2nd Respondent to conduct a fresh election with the 1st Appellant as a candidate within 90 days." Per TSAMMANI, J.C.A. (Pp. 50-53, paras. D-D)